William P. Miles, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 13, 2003
01a12528 (E.E.O.C. Mar. 13, 2003)

01a12528

03-13-2003

William P. Miles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


William P. Miles v. United States Postal Service

01A12528

March 13, 2003

.

William P. Miles,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A12528

Agency No. 4C170003499

Hearing No. 170-A0-8409x

DECISION

William P. Miles (complainant) timely initiated an appeal from the

agency's final order concerning his equal employment opportunity (EEO)

complaint of unlawful employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission AFFIRMS the agency's final order.

The record reveals that complainant, a Mailhandler at the agency's

Wilkes-Barre, Pennsylvania facility, filed a formal EEO complaint on

June 18, 1999, alleging that the agency had discriminated against him on

the bases of disability (soft tissue damage to back, asthma, arthritis)

and age (41 at the relevant time) when:

(1) he was subjected to intense supervision on a continuing basis;

(2) his bid job was rescinded on February 10, 1999; and

he was denied overtime.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant failed to establish that he was an

individual with a disability within the meaning of the Rehabilitation Act.

In so finding, the AJ noted that although complainant described a number

of impairments, such as a back injury, asthma, and arthritis in his right

hip, he failed to prove that his impairments substantially limited any of

his major life activities. The AJ concluded that complainant therefore

did not establish a prima facie case of disability-based discrimination.

The AJ further concluded that complainant did not establish a prima

facie case of age discrimination in regard to any of his allegations,

noting that complainant failed to name any significantly younger

similarly situated employees who were treated more favorably than he

in regard to any of the incidents he described. Specifically, the AJ

noted that complainant was assigned to an area in which it was critical

to have coverage in order to ensure that mail processing was not delayed.

She noted that complainant did not name any younger comparators who were

assigned to critical areas but were subjected to less intense supervision

than he. The AJ also noted that although the record suggested that

co-workers who smoked were treated more favorably in terms of break

time than those who did not smoke, there was no evidence that this

more favorable treatment was related to age. Finally, the AJ noted

that complainant testified that his supervisor (S1) subjected him to

similar heightened scrutiny in the years before complainant turned 40

and concluded that S1's behavior was not motivated by complainant's age.

The AJ then found that complainant did not raise an inference of age

discrimination in regard to his remaining claims. In so finding, the

AJ noted that when complainant's bid job was rescinded, it was awarded

to an employee significantly older than complainant. Moreover, the AJ

noted that complainant's duty status report indicated that he could not

work more than 8 hours per day due to his impairments. The AJ found

that complainant failed to name a significantly younger co-worker with

a similar restriction who was granted more overtime than complainant.

The AJ concluded that complainant did not establish by a preponderance

of the evidence that he was discriminated against on the bases of his age

or disability. The agency's final order implemented the AJ's decision.

On appeal, complainant essentially restates arguments previously made

at the hearing, contending that the AJ's decision involved erroneous

findings. In response, the agency restates the position it took in its

FAD, and requests that we affirm its final order.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record

and that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws.

We note that complainant failed to establish that he is an individual

with a disability within the meaning of the Rehabilitation Act. An

"individual with a disability" is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities;

(2) has a record of such impairment; or (3) is regarded as having such

an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,

but are not limited to, caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. � 1630.2(i). Other major life activities include lifting,

standing, reaching and sitting. See Appendix to Part 1630 - Interpretive

Guidance on Title I of the Americans with Disabilities Act (Interpretive

Guidance), � 1630.2(i). The positive and negative effects of mitigating

measures used by the individual, such as medication or an assistive

device, must be considered when deciding if he or she has an impairment

that substantially limits a major life activity. Sutton v. United

Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service,

Inc., 527 U.S. 516 (1999).

An individual is substantially limited in a major life activity if he is

unable to perform that activity, or is significantly restricted as to the

condition, manner, or duration under which he can perform that activity

as compared to the average person in the general population. See 29

C.F.R. � 1630.2(j)(1). Here, complainant failed to establish that he was

substantially limited in any major life activity. The medical documents

in the record indicate that complainant's impairments restricted him to

lifting no more than 20 pounds, although the documents also note that

he should only frequently lift/carry objects weighing up to 10 pounds.

Complainant also was limited to standing and walking no more than four

hours per day.

Although lifting, standing and walking are major life activities,

complainant failed to establish that he is unable to perform these

activities or is significantly restricted in his ability to perform them.

The record establishes that complainant can lift 20 pounds and can

frequently lift and carry objects weighing up to 10 pounds. During his

hearing testimony, complainant provided additional information as to how

his ability to lift was limited. He noted that he could not �work out�

or perform heavy lifting, due to back pain, but also testified that when

he experienced back pain he could often remedy it by sitting down for a

10 minutes, laying down and �snapping his back in place,� stretching,

or using a heating pad. At worst, complainant is unable to lift more

than 20 pounds and frequently lift/ carry more than 10, and his own

testimony reveals that with the use of mitigating measures such as

sitting, stretching and applying heat, complainant can minimize back

pain caused by the lifting. In these circumstances, we cannot find that

complainant's ability to lift is substantially limited. See e.g.,

Simonton v. United States Postal Service, EEOC Petition No. 03A10025

(March 29, 2001) (complainant did not present sufficient evidence to

establish that his inability to lift more than twenty pounds substantially

limits his ability to lift). Complainant provided no evidence relating

to his standing or walking limitations, beyond a doctor's indication that

he could do so between 1 and 4 hours per workday. This limitation does

not render complainant substantially limited in standing or walking.

See Thompson v. United States Postal Service, EEOC Appeal No. 01971189

(August 31, 2000) (complainant not substantially limited in standing

or walking where restricted to standing or walking 3-4 hours maximum

per day).

Nor did complainant provide any evidence to suggest that he was regarded

as having an impairment that substantially limited in a major life

activity or having a record of such an impairment. Accordingly, the

AJ's determination that complainant failed to establish that he is an

individual with a disability within the meaning of the Act was proper.

Turning to complainant's claim of age discrimination, we again discern no

reason to disturb the AJ's finding of no discrimination. Complainant

failed to present sufficient evidence to establish that any of the

agency's actions were motivated by a discriminatory animus towards

his age. For example, although complainant attributed S1's intense

supervision to complainant's age, he testified that S1 subjected him

to the same type of heightened supervision before and after he turned

40. Moreover, complainant did not establish that similarly situated

significantly younger co-workers were subjected to less supervision

than he or provide any other evidence to suggest that S1's actions were

motivated by a discriminatory animus. Nor did complainant presented

any competent evidence to suggest that the bid recession or the amount

of overtime he received were motivated by his age.

Finally, we note that both the AJ and the agency failed to address an

issue that was previously remanded by this Commission for consolidation

with Issues 1-3 above. The record establishes that complainant's

complaint included an allegation that the intense supervision he was

subjected to began in April 1996 and continued through March 1999.

In a September 2, 1999 FAD, the agency dismissed that portion of the

allegation which involved events occurring prior to February 9, 1999.

Complainant appealed this dismissal and, on January 28, 2000, this

Commission remanded the issue for consolidation with those claims that

were accepted. Accordingly, both the AJ and the agency should have

addressed complainant's claim that he was discriminated against on the

bases of age and disability when he was subjected to intense supervision

between April 1996 and February 1999. Rather than doing so, the AJ used

this claim as background information and noted that it was not the subject

of the hearing. The agency implemented the AJ's decision without comment.

We find, however, that in the case at hand this error has no bearing

on the ultimate finding of no discrimination. As discussed above,

complainant failed to establish he is an individual with a disability

and therefore cannot establish that he was subjected to disability-based

discrimination in regard to the events which allegedly occurred between

April 1996 and February 1999. Furthermore, as the AJ noted in her

decision, complainant testified that the intense supervision to which he

was subjected began before he turned 40 years old, and therefore prior to

the time in which he was protected from age discrimination by the ADEA,

and continued in the same manner after he turned 40. As complainant

himself testified that he was subjected to the same treatment both prior

to and after his 40th birthday, he cannot establish that the treatment

was motivated by his membership in a protected group.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

March 13, 2003

Date