Alvin N. DeVaughn v. United States Postal Service
01983352
May 18, 2000
Alvin N. DeVaughn, )
Complainant, )
) Appeal No. 01983352
v. ) Agency No. 4D-270-0080-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of race (Black) and physical disability (hand and finger
swelling), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; and the Rehabilitation Act of
1973,<1> as amended, 29 U.S.C. � 791, et seq.<2> Complainant alleges
he was discriminated against when: (1) on or about January 6, 1997, his
name was removed from all hiring registers; and (2) on or about January
16, 1997, his request for reconsideration for employment was denied.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant applied for
employment as a part-time flexible letter carrier (LC) at the agency's
District Post Office in Greensboro, North Carolina. Complainant alleged
that although two physicians told him he could perform the LC position,
he was told by the Manager of Human Resources that his inability to stand
for long periods and grasp items due to arthritis rendered him medically
unsuitable for that position. Complainant alleges that although he is
able to work within his medical condition, the agency's perception of
him was that he has a physical disability which disqualifies him from
employment. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint on September
30, 1997. At the conclusion of the investigation, complainant requested
that the agency issue a FAD.
The FAD found that complainant failed to establish a prima facie case
of race discrimination because he presented no evidence that similarly
situated individuals not in his protected classes were treated differently
under similar circumstances. The FAD further found that complainant
failed to establish a prima facie case of disability discrimination,
as he failed to demonstrate that he is an individual with a disability
as that term is defined in the Rehabilitation Act. The FAD further
found that complainant failed to establish that he has an impairment
which substantially limits one or more of his major life activities,
that he has a record of, or was regarded as having, such an impairment.
In any event, the FAD found that the agency articulated a legitimate,
nondiscriminatory reason for its action, namely, that complainant was not
hired for the LC position as the agency's consulting physicians opined
that he was medically unsuitable. The FAD found that complainant failed
to demonstrate that the agency's articulated reasons were a pretext for
discrimination. On appeal, complainant contends that the agency erred
in finding that he was not discriminated against due to his disability.
The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees with the
FAD's finding that complainant failed to establish a prima facie case
of race discrimination, as he failed to show that any similarly situated
employees not in his protected class were treated differently. We further
agree with the FAD that complainant failed to establish a prima facie case
of disability discrimination, as he failed to demonstrate that he is an
individual with a disability as defined by the Rehabilitation Act. 29
C.F.R. �1630.2(g). The medical evidence of record and complainant's
testimony establishes that neither the pain and swelling in his fingers,
hands and wrists caused by arthritis nor the bilateral pes planus of his
feet constituted an impairment which substantially limited one or more
major life activities. A review of the record shows that the Department of
Veterans Affairs assessed complainant's hand and wrist condition to be
twenty (20) percent disabling,<3> and complainant's examining physicians
opined that his periodic finger swelling would not prevent him from
performing the LC position. We further find that complainant was not
regarded by the agency as being an individual with a disability. In so
finding, we note that upon a review of complainant's medical records, the
agency's consulting physicians found that complainant's hand and foot pain
rendered him medically unsuitable for the LC position. The LC position
requires the ability to stand for periods up to eight (8) hours per day,
grasp items and lifting/carrying of a shoulder bag weighing up to thirty
(30) pounds. We note that the agency found complainant unable to perform
the LC position based on the reports of the consulting physicians, but
later reinstated him for consideration for other agency positions with
less strenuous physical requirements.<4> The Commission has held that
in order to show that an employee was regarded as disabled, evidence
must be presented which shows that the employer perceived him or her as
incapable of performing a class of jobs or a broad range of jobs because
of the impairment. Wood v. United States Postal Service, EEOC Request
No. 05950624 (October 17, 1997); Guillory v. Department of the Navy, EEOC
Appeal No. 01945298 (January 24, 1996). As the agency in the instant case
found that complainant was unable to perform the LC position but that he
was medically suitable for other positions, he has failed to establish
that he was regarded as an individual with a disability. Therefore,
for the reasons stated above, and after a careful review of the record
and arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
May 18, 2000
Date Frances M. Hart
Executive Director
Executive Secretariat
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. Since that time, the
ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of
disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2 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.
3 We note that although complainant was rated as disabled by the
Department of Veterans Affairs, this determination does not necessarily
indicate that he is disabled within the meaning of the Rehabilitation Act.
4 The record does not indicate whether complainant was ultimately
hired for any of the agency positions which he was considered capable
of performing.
Comments