01A12088
08-16-2002
Traci Cannon-Stokes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Traci Cannon-Stokes v. United States Postal Service
01A12088
August 16, 2002
.
Traci Cannon-Stokes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A12088
Agency No. 4J-606-1208-96
Hearing No. 210-99-6608X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her 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.<1> 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 Letter Carrier at the agency's
Austin Station in Chicago, Illinois, filed a formal EEO complaint on June
21, 1996, alleging that the agency had discriminated against her on the
bases of disability (post traumatic stress disorder) and in reprisal
for alleged prior EEO activity (requesting a hardship transfer) when
she was denied reasonable accommodation and harassed. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge.
Following a hearing, the Administrative Judge issued a decision finding
no discrimination. The agency adopted the Administrative Judge's decision
as its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
Turning first to complainant's claim of disability discrimination, as a
threshold matter, complainant must establish that she is a �individual
with 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). Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I
of the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
Where, as in this case, complainant does not contend and the evidence
of record does not indicate that she is substantially limited in other
major life activities, we will consider the major life activity of
working. The major life activity of working should only be considered
if an individual is not substantially limited with respect to any
other major life activity. Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(j).
The inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working. 29 C.F.R. �
1630.2(j)(3)(i). To be substantially limited in the major life activity
of working, one 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). Complainant must prove that she
was substantially limited in working in a class of jobs or a broad range
of jobs in various classes. 29 C.F.R. � 1630.2(j)(3)(i).
Although complainant was afraid of working in what she termed an
�uncontrolled environment,� the Administrative Judge found that the
record established that her only restriction was that she could not
deliver mail on a residential route as a result of being assaulted by
a postal patron in November 1995 while delivering mail in the lobby
of a building. The Administrative Judge concluded that complainant's
inability to deliver mail on residential routes was a narrow restriction
and did not substantially limit her ability to work in a class of jobs
or a broad range of jobs in various classes. The Administrative Judge
also found that complainant did not prove that the agency regarded her
as having an impairment which substantially limited her ability to work
or that she had a record of such.
Complainant argues on appeal that she was unable to work out of doors as
a Letter Carrier and that the exclusionary criterion of not being able
to work out of doors would disqualify her from a broad range of other
outdoor positions. In support of her position, complainant cites to
the Commission's decision in Cordero v. United States Postal Service,
EEOC Appeal No. 01963946 (March 13, 1997), request to reconsider denied,
EEOC Request No. 05970685 (May 22, 1997), wherein the Commission found
that the agency regarded complainant, who had mild asthma, as being
unable to work out of doors and thus disqualified from a broad range of
jobs involving out of doors work.
Upon review, we find that complainant's reliance on the Cordero decision
is misplaced. Most significantly, the record in the case before us fails
to establish that complainant was, in fact, restricted from working
out of doors. The Administrative Judge did not find that complainant
was restricted from working out of doors, and although the agency's
psychiatric second opinion evaluation suggested that complainant be
permanently assigned to an �inside� job, we decline to credit the agency's
physician's opinion over that of complainant's treating psychologist
who did not restrict complainant from working out of doors.<2>
Accordingly, we agree with the Administrative Judge that complainant did
not prove she was an individual with a disability. For the reasons set
forth in the Administrative Judge's decision, we also agree with the
Administrative Judge's conclusion that the record failed to establish
that any of the agency's actions towards complainant were motivated by
retaliatory animus. In reaching these conclusions, we find that the
Administrative Judge's findings of fact are supported by substantial
evidence in the record, and we discern no basis to disturb her decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal 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
August 16, 2002
__________________
Date
1 The 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.
2 The Cordero decision is further distinguished by the fact that
the Commission found that the agency regarded complainant Cordero
as being unable to work out of doors in any capacity while in the
instant case, the Administrative Judge did not find that complainant
could not work out of doors in any capacity, only that she could not
work out of doors on a residential route as a Letter Carrier. We note
that complainant's reliance on the Cordero decision may have resulted
from the Administrative Judge's reference to the Commission's decision
in Barber v. United States Postal Service, EEOC Appeal No. 01950175
(May 2, 1996), wherein the Commission found that a Letter Carrier who
developed post traumatic stress disorder after being attacked by a
dog failed to establish that he was substantially limited in the major
life activity of working because being unable to work out of doors as a
Letter Carrier only limited him from working in a narrow range of jobs in
various classes. The Administrative Judge referenced the Barber decision
for the proposition that an impairment which affects only a narrow range
of jobs does not substantially limit an individual's ability to work.