03A00061
08-27-2002
Charlie L. Rice, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charlie L. Rice v. United States Postal Service
03A00061
08-27-02
.
Charlie L. Rice,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A00061
MSPB No. AT-0752-98-0875-I-1
DECISION
On February 17, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner, a Mailhandler, PS-04, at the Bulk Mail Center in Memphis,
Tennessee, claimed that he was discriminated against on the basis of
disability (heart condition) when, on June 21, 1998, he was removed from
his position, because he was unable to meet the physical requirements
thereof.<1> On June 21, 1998, petitioner filed a mixed case appeal
with the MSPB. The agency asserted, inter alia, that petitioner was
not a qualified individual with a disability. After a hearing, the
Administrative Judge found no discrimination with respect to this claim.
The Board denied petitioner's petition for review.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the MSPB
with respect to the claim of discrimination constitutes an incorrect
interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In order to establish a prima facie case of disability discrimination,
complainant must show that he is an individual with a disability
as defined in 29 C.F.R. � 1630.2(g), and that he is a qualified
individual with a disability as defined in 29 C.F.R. � 1630.2(m).<2>
An individual with a disability is one who: 1. has an impairment which
substantially limits one or more major life activities; 2. has a record
of such an impairment; or 3. is regarded as having such an impairment.
29 C.F.R. �1630.2(g). Major life activities include caring for one's
self, performing manual tasks, walking, seeing, breathing, learning,
and working. 29 C.F.R. �1630.2(i).
We find that petitioner is not an individual with a disability within
the meaning of the regulations.
The record contains testimony from two doctors, who both examined
petitioner, concerning his limitations. Petitioner was treated by the
first doctor, D-1, who was a cardiologist, between January 15, 1990 and
May 24, 1998. In his January 1998 report, D-1 noted that petitioner had
an acute myocardial infarction in 1990, and coronary surgery thereafter.
Petitioner returned to work on light duty. According to the record,
petitioner took only 5 grams of aspirin each day, and did not take any
other medication. D-1 opined that petitioner had permanent limitations
resulting from a scar on the bottom and back of his heart. He limited
petitioner's activity to �lifting no more that 35 pounds occasionally,
25 pounds frequently,� and �no more than occasional bending, stooping, and
pulling from overhead.� D-1 noted that petitioner could walk and stand.
The agency sent petitioner to a second cardiologist, D-2, who examined
him on December 23, 1997. D-2 diagnosed petitioner with coronary artery
disease and borderline hypertension. He stated that petitioner should
be able to walk or stand for a full work day without difficulty, to lift
25 pounds frequently, 50 pounds infrequently, and no more than 75 pounds,
and to occasionally bend, stoop, or pull from overhead.
Even if we accept the assessment of petitioner by D-1, which places more
restrictions on petitioner's abilities, we find that petitioner is not
substantially limited in lifting because he can frequently lift up to
25 pounds. Petitioner has failed to demonstrate that he is substantially
limited in bending, stooping, or pulling. It is noted that petitioner
advised D-2 that he was able to do moderate activity at home without
difficulty, and only experienced problems at work when he attempted
heavy lifting. Further, the record contains no evidence that petitioner
had a record of a disability.
Finally, we find that petitioner was not perceived as disabled by the
agency. According to the record, petitioner was sent for a fitness for
duty examination when a new management official questioned the length
of time he had remained on light duty. Based upon the findings of D-1
and D-2, the agency determined that petitioner was unable to perform
the 70-pound lifting requirement of the Mailhandler position. It is
noted that, in order to be considered substantially limited in the major
activity of working, an individual must be significantly restricted in
the ability to perform either a class of jobs or a broad range of jobs in
various classes as compared to others having comparable training, skills,
and abilities. 29 C.F.R. �1630.2(j)(3)(i). Petitioner has not shown what
class or broad range of jobs the agency regards him as unable to perform.
The Supreme Court recently held that, to be substantially limited in
the major life activity of working, an individual must be precluded
from more than one type of job, a specialized job, or a particular
job of choice. Sutton v. United Airlines, Inc., 527 U.S. 471 (1999);
Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); see also 29
C.F.R. �1630.2(j)(3)(i). In this case, the record shows that petitioner
was at most regarded as being unable to perform one particular job, and
was not considered to be substantially limited with regard to a class
or broad range of jobs. Therefore, based upon a thorough review of the
record and for the foregoing reasons, it is the decision of the Commission
to CONCUR with the final decision of the MSPB finding no discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
___08-27-02_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), the agency, and the MSPB on:
__________________
Date
______________________________
1The record shows that the Mailhandler position at the Bulk Mail Center
required individuals to lift up to 70 pounds.
2The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.