01976737
02-02-2000
Mikle W. Williams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Mikle W. Williams v. United States Postal Service
01976737
February 2, 2000
Mikle W. Williams, )
Complainant, )
)
v. ) Appeal No. 01976737
)
William J. Henderson, ) Agency No. 4-G-752-1277-96
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of physical disability (right heel spur and plantar fascitis)
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq.<1> Complainant claims he was discriminated against when on
May 13, 1996, he was required to work outside the physical limitations
imposed by his physician. This appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that complainant, a Modified Letter Clerk at the
agency's University Station in Dallas, Texas ("facility"), filed a formal
EEO complaint with the agency on August 1, 1996, alleging discrimination
as referenced above. The agency accepted the complaint for processing,
and at the conclusion of the investigation, complainant was granted
thirty days to request a hearing before an EEOC Administrative Judge or
an immediate FAD from the agency. After complainant requested a final
decision, the agency issued a FAD finding no discrimination.
The FAD found that other than his allegations presented in his complaint,
complainant failed to present evidence to substantiate his claim that he
was required to work outside his physical limitations. The FAD pointed
to the testimony of the facility's Manager, who stated that complainant
was never required to exceed his medical restrictions. As a result,
the FAD concluded that complainant failed to establish that he was a
victim of disability discrimination. On appeal, complainant makes no
new contentions and the agency requests that we affirm the FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973) and Prewitt v. United States Postal Service, 662
F.2d 292 (5th Cir. 1981), the Commission finds that complainant failed
to present credible evidence demonstrating that he was discriminated
against based on his disability or that he was required to work outside
of his medical restrictions.<2> The evidence established that as a
result of his medical restrictions, the agency provided complainant a
modified limited duty position accommodating his physical limitations.
Other than his bare assertions that he was required to stand or walk for
time periods beyond his medical restrictions, complainant provides no
evidence substantiating his claim. The agency submitted affidavits from
three facility managers stating that they never required complainant to
perform duties outside of his medical restrictions and that they had no
knowledge of any instances where complainant exceeded his restrictions.
As a result, we find that the agency accommodated complainant's physical
disability and that complainant has failed to demonstrate that the agency
required him to perform duties outside his restrictions.
Analyzing the case under the disparate treatment theory, we find that
complainant has failed to establish a prima facie case of discrimination
because he failed to demonstrate that the agency took adverse action
against him, in that the evidence does not indicate that he was required
to perform duties outside his medical restrictions. See Hemsley v
Department of Commerce, EEOC Appeal No. 01943469 (March 14, 1996).
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 2, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 We note that pursuant to the Rehabilitation Act Amendments of 1992,
the Americans with Disabilities Act's employment standards apply to
all non-affirmative action employment discrimination claims filed by
federal applicants or employees with disabilities under Section 501 of
the Rehabilitation Act. Pub. L. No. 102-569 � 503(b), 106 Stat. 4344
(1992)(codified as amended at 29 U.S.C. � 791(g)(1994)).