Luigi B., Complainant v. Jeh C. Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120110576 Agency Nos. HS-08-TSA-001757 HS-08-TSA-004541 DECISION Complainant filed an appeal from the Agency's September 29, 2010, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUES PRESENTED The issues presented are: 1) whether the Agency properly found that Complainant failed to prove that he was subjected to discrimination on the basis of sexual orientation/gender stereotypes when it issued him a Letter of Reprimand; and 2) whether the Agency properly found that Complainant is not an individual with a disability entitled to coverage under the Rehabilitation Act. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Screener/Transportation Security Officer (TSO), SV-1802-E, at the Dallas-Fort Worth International Airport in Texas. In March 2005, Complainant suffered injuries when a stack of tubs fell on him while working. Complainant also was injured in November 2005 when luggage hit his hand, causing him to jerk back and strain his neck. Consequently, the Agency assigned Complainant to a limited-duty assignment that primarily involves monitoring exit lanes and checking passenger identification. Report of Investigation, Exhibit F-11 p. 34. Since June 16, 2006, Complainant has been permanently restricted from continuously lifting more than five pounds and intermittently lifting more than 26 pounds. Exhibit F-11, p. 17. Complainant is also restricted from continuously pushing more than 20 pounds or intermittently pushing more than 40 pounds. In a Letter of Reprimand dated October 29, 2007, the Security Manager (Manager) reprimanded Complainant based on "inappropriate behavior" on September 27, 2007. Exhibit F-10, p. 1. Specifically, the letter stated that Complainant made the statement, "Watch out for the Black BDO, he will punch you out" in reference to an African-American Behavior Detection Officer. The letter stated that the reprimand would remain in Complainant's Official Personnel File (OPF) for up to two years and could be cited as a prior formal disciplinary action in any future disciplinary matter. On or about January 9, 2008, the Supervisory Transportation Security Officer (Supervisory TSO) instructed Complainant to sign a form opting out of the Performance Accountability and Standards System (PASS). Complainant refused to sign the opt-out form. Under PASS, employees were given the following ratings: 1) Does Not Meet Standards; 2) Achieves Standards; 3) Exceeds Standards; and 4) Role Model of Excellence. F-17, p. 1. Employees with "Achieves Standards" ratings were given the standard bonus of $1,000; employees with "Exceeds Standards" ratings were given a $2,000 bonus; and employees with Role Model of Excellence" ratings were given a bonus of $3,000. G-5, p. 2. On May 21, 2008, Complainant filed an EEO complaint alleging that the Agency unlawfully discriminated against him in the following manner: 1. On October 29, 2007, the Agency subjected Complainant to discrimination on the basis of sexual orientation1 (gay) when it issued him a Letter of Reprimand; and 2. On January 9, 2008, the Agency subjected Complainant to discrimination on the basis of disability (neck nerve damage) when the Supervisory TSO instructed Complainant to sign a form opting out of the 2007 PASS and informed him that he would not receive his bonus or salary increase under the 2007 PASS unless he signed the form. The Investigation a. Letter of Reprimand In an investigative affidavit statement, Complainant stated that he believed that the Agency issued him a Letter of Reprimand on October 29 2007 because of his sexual orientation. Report of Investigation (ROI), Exhibit F1a. Complainant further stated that, because he is openly gay, he frequently talks and jokes with other gay employees throughout the airport. Complainant also stated that those interactions have occurred with other non-gay employees in very close proximity, and over time, he has overheard various Agency staff make demeaning and degrading remarks about gay people, as well occasional jokes in his presence with the intent to embarrass him. He stated that he feared that an otherwise innocent comment he made was used by management as an opportunity to add a Letter of Reprimand to his file and bring him a step closer to termination. Complainant stated that, on October 29 2007, there was an altercation in another terminal in which a Behavior Detection Officer (BDO) pushed a TSO, which led to an "exaggerated rumor" that suggested that the BDO had instead punched the TSO. Complainant further stated that, later that afternoon, he discussed the incident with two Aviation Direct Access Screening Processors (ADASPs) in the Terminal D break room. He stated that, after break, he walked over to the exit doors and opened the doors and said in jest, "Watch out! Don't let that Black BDO punch you out." He stated that "there was laughter all around." Complainant also stated that the allegations detailed in the Letter of Reprimand are factual and correct. However, Complainant stated that the Transportation Security Manager (Manager) who issued the Letter of Reprimand did not explain why he issued the discipline. The Manager stated that he was not aware of Complainant's sexual orientation when he issued him the Letter of Reprimand. Exhibit F1c. The Manager stated that two managers (S1 and S2) who oversee the BDOs complained about Complainant making a "Black BDO" statement, and S1 informed him about complaints she received from two employees (C1 and C2) . The Manager further stated that the Screening Deputy instructed him to conduct an investigation of the incident, and that he (the Manager) collected incident reports from C1, C2, and other witnesses. He stated that each witness reported that they heard Complainant make a statement, but C1 said he did not hear Complainant say "Black BDO." The Manager further stated that he spoke with Complainant and obtained his statement on the matter; Complainant admitted that he made the statement and was apologetic about the matter. The Manager stated that he considered Complainant's persuasive immediate apology when making his decision to issue the reprimand, but he also knew that Complainant had to be disciplined because of the public nature of his statement. The Manager stated that none of Complainant's co-workers engaged in "inappropriate behavior" during the relevant time period and, therefore, they did not receive a reprimand. A heterosexual BDO stated that he worked as a TSO in the Aviation Direct Access Screening (ADASP) on September 27, 2007. Exhibit F1d. The BDO stated that on that date, Complainant put his head through the security exit door and stated, "Watch out for those Black BDOs" when C1 and C2 stopped to talk to the BDO and another TSO. The BDO stated that he filed an incident report on the matter dated September 27, 2007, because Complainant appeared to be singling out a particular race with his statement, and Complainant's statement was insensitive and could have offended C1, who is African-American. The BDO further stated that, on the same day of this incident, there was a rumor that there was a Black BDO who pushed or punched a White TSO. b. PASS Opt-Out Form Regarding claim 2, Complainant stated that he has been on limited-duty status since approximately June 2006, with work limitations that restrict him from lifting more than 26 pounds. Exhibit F1b. Complainant further stated that he can perform all of the duties of his TSO position, except bag checking because it requires lifting. Complainant stated that, after he returned to work on limited duty in 2006, he received the minimum pay bonus for the 2006 PASS rating. Complainant stated that a Supervisory TSO told him to sign a form to opt of the 2007 PASS, and further said that he would not receive a bonus for his 2007 PASS or a raise under the PASS system if he did not sign the form. Complainant further stated that he did not sign the opt-out form and called the Ombudsman's Office to obtain advice about filing a grievance. Complainant stated that he filed a grievance after talking to the Ombudsman's representative, but he was later informed that he had missed the "window of opportunity" to file a grievance. Complainant stated that he received a pay bonus and pay raise for 2007, but he believed that the pay bonus was the minimum because he was not rated in PASS for 2007. He stated that he believed that his "pay raise" was actually a cost of living raise. Complainant further stated that his impairment does not affect PASS requirements, and there is even an Agency directive that directs management how to conduct PASS without affecting work limitations. The Terminal Coordinator (TC) stated that he was aware that Complainant was on limited duty because of a work injury but was not aware of Complainant's work limitations. Exhibit F1f. The TC also stated that TSOs assigned to Passenger Checkpoint are required to operate the x-ray machine, hand-wand passengers from head to floor, pat down passengers, monitor the walk through metal detector, check security documents, perform bag checks, control exit and entry at checkpoint, repeatedly lift up to 70 pounds continuously, walk one to four hours with a break, walk up to two miles, bend, reach, stoop, squat, and stand. The TC also stated that he asked Complainant to opt out of the 2007 PASS because his work limitations would not allow him to participate in the 2007 PASS. He stated that Agency records reflect that Complainant did not participate in the 2007 PASS, but he was not sure if Complainant received a 2007 PASS pay bonus or if other limited-duty employees who did not opt out received pay bonuses. The TC further stated that not all limited-duty employees were asked to opt out of the 2007 PASS, but all employees with work restrictions that did not allow for full participation in PASS were asked to opt out. He stated that Complainant's pay bonus was affected by his impairment because his impairment did not allow him to perform the minimum duties required for PASS. The TC stated that he also told Complainant it was his understanding that he would get a 2007 bonus based on the last time he was rated when he was 100-percent able to perform the duties. The Supervisory TSO stated that he was aware of Complainant's lifting and pulling/pushing restrictions. Exhibit F1g. He further stated that Complainant's restrictions did not allow him to perform the full range of Passenger TSO duties, and that he was assigned to work as an Exit Lane Monitor. The Supervisory TSO stated that the essential functions of a Passenger TSO position require x-ray machine operation, hand-wanding, pat-downs, monitoring passengers walking through metal detectors, checking carry-on bags, performing simple tests on bags, checking boarding passes, controlling exit and entry at checkpoint, and continuously lifting trays and bags. The Supervisory TSO also stated that when Complainant questioned him why he had to sign the form, the Supervisory TSO reiterated that he was instructed to have Complainant sign the form or Complainant would not receive a bonus. The Supervisory TSO stated that he informed the TC that Complainant did not sign the opt-out form but was not sure if all other limited-duty employees signed and returned the forms. He stated that he did not know if Complainant received 2006 or 2007 PASS bonuses, but Complainant's impairment would affect PASS requirements for a rating because Complainant's work limitations did not allow him to perform all the functions of a Passenger Checkpoint TSO position. However, the TC also stated that he understood that Complainant's disability would not have excluded him from a pay bonus because Complainant was eligible for a 2007 PASS bonus based on his last PASS rating for which he was "100 percent" able to perform all duties required for PASS. The record contains Duty Status Reports from November 2005 to December 2007. Exhibit F-11. The reports reflect that from November 17, 2005 until June 16, 2006, Complainant's physician completely restricted him from lifting, sitting, standing, walking, climbing, kneeling, climbing, kneeling, bending/stooping, twisting, pulling/pushing, simple grasping, reaching above the shoulder, or operating machinery. Exhibit F-11, pp. 17, 24. On June 16, 2006, the physician restricted Complainant from lifting more than five pounds continuously or more than 10 pounds intermittently. F-11, p. 17. On August 9, 2006, the physician restricted Complainant from lifting more than five pounds continuously and 26 pounds intermittently. F-11, p. 16. The physician reiterated the August 9, 2006, restrictions on Duty Status Reports dated February 6, 2007, July 17, 2007, and December 28, 2007. F-11, pp. 10, 11, 13. The record also contains Limited Duty Assignment forms dated June 29, 2005, February 22, 2007, March 14, 2007, and July 12, 2007, which reflect the same restrictions identified by the physician on August 9, 2006. Exhibit F-11, p. 6. The forms also reflect that Complainant accepted a limited-duty assignment at Terminal B on June 6, 2005, that involved monitoring the exit lane and reminding passengers to remove items that might set off the metal detector and to pick up their possessions before they leave the security checkpoint. F-11, pp. 29, 30. The record also reflects that Complainant accepted a limited-duty assignment within his restrictions at Terminal D in February 2007, March 11, 2007, and July 2007. F-11, pp. 6, 8, 12. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Final Agency Decision The Agency's final decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the decision determined that, for claim 1, the Agency provided a legitimate, non-discriminatory reason for its action and Complainant failed to prove that the explanation was pretext for unlawful discrimination. With respect to claim 2, the decision determined that Complainant was not an individual with a disability. The decision also found that, for claim 2, the Agency provided legitimate, non-discriminatory reasons for its actions, and Complainant failed to prove that those explanations were pretext for unlawful discrimination. CONTENTIONS ON APPEAL Complainant relies on the record below regarding the Letter of Reprimand. Regarding the PASS claim, Complainant argues that he established that he is a qualified individual with a disability within the meaning of the Rehabilitation Act. Complainant maintains that he is substantially limited in a major life activity because his impairment limits his ability to lift more than 26 pounds intermittently or five pounds continuously. Complainant also maintains that the Agency regarded him as disabled because it instructed him to opt out of PASS because he is a 1imited-duty employee. Additionally, Complainant maintains that he is substantially limited in his ability to work as a result of his impairment. Complainant maintains that by opting out of PASS, employees on limited duty are not given the opportunity to compete for a higher annual bonus. He states that he was given a bonus on his 2006 rating of "Achieves Standards," but that employees who earn "Achieves Standards" ratings receive only the standard federal government raise and a $1,000 bonus, whereas employees who earn an "Exceeds Standards" rating receive an increased percentage raise and a $2,000 bonus, while employees who receive a "Role Model of Excellence" rating receive an increased percentage raise and a $3,000 bonus. Id. The Agency did not raise any arguments on appeal. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Complainant's complaint alleges that that he was subjected to disparate treatment because of his sexual orientation and disability. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For example, in order to establish a prima facie case of disability discrimination, a complainant must demonstrate that: (I) he is an "individual with a disability": (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Reprimand Complainant alleged that the Agency reprimanded him because of his sexual orientation. While Title VII's prohibition of discrimination does not explicitly include sexual orientation as a basis, Title VII prohibits sex discrimination, including sex-stereotyping discrimination and gender discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989); see Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). The term "gender" encompasses not only a person's biological sex, but also the cultural and social aspects associated with masculinity and femininity. Id. Moreover, we have held that sex discrimination claims may intersect with claims of sexual orientation discrimination. See Culp v. Dep't of Homeland Security, EEOC Appeal 0720130012 (May 7, 2013) (complaint stated a claim of sex discrimination under Title VII where supervisor counseled complainant that associating with lesbian colleague created an improper perception); Baker v. Social Security Administration, EEOC Appeal No. 0120110008 (Jan. 11, 2013) (the fact that a complainant characterized his complaint as alleging sexual orientation discrimination does not defeat an otherwise valid sex discrimination claim under Title VII); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011) (complaint stated a claim of harassment involving sex stereotypes under Title VII where complainant alleged harassment because he married someone of the same sex); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) (complainant alleged sex stereotyping under Title VII by asserting that a manager made offensive comments about her having relationships with women). Even if we assume, arguendo, that Complainant alleged he was subjected to sex-stereotyping, we find that the Agency articulated a legitimate, nondiscriminatory reason for issuing Complainant a Letter of Reprimand. See Jennings v. Dep't of Labor, EEOC Appeal No. 0120112716 (Feb. 25, 2013) (finding that while complainant did not allege sex-stereotyping agency nonetheless articulated legitimate, non-discriminatory reasons for its action). Specifically, Agency management stated that Complainant was reprimanded because he referred to a Behavior Detection Officer as a "Black BDO" in the presence of coworkers. We note that, during the investigation of his complaint, Complainant acknowledged that he stated, "Don't let that Black BDO punch you out." Likewise, in Complainant's September 27, 2007, statement, Complainant stated that he informed the Manager that he made the statement, "Watch out for the Black BDO, he will punch you out." Exhibit F-3. Upon review, we find that Complainant failed to prove that the Agency's legitimate, non-discriminatory reason for issuing him a reprimand was pretext for unlawful discrimination on the basis of sex. Consequently, we affirm the Agency's finding that Complainant failed to prove that he was subjected to unlawful discrimination with respect to claim 1 for the reasons set forth in this decision. PASS Opt Out In order to prevail on a claim of disability discrimination, Complainant must first establish that he is an individual with a disability within the meaning of the Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertsons, Inc., v. Kirkingburg, 527 U.S. 555 (1999); Cook v. U.S. Postal Serv., EEOC Request No. 05960015 (June 21, 1996) (to merit the protection of the Rehabilitation Act, it is not enough to have a particular medical condition that carries the potential for substantial limitations). We note that the events in this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006 and 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability." 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 record of such an impairment; or (3) is regarded as having such an impairment. See 29 C.F.R. § 1630.2(g)(1)-(3). A physical impairment includes any physiological disorder affecting, inter alia, neurological, musculoskeletal, and/or endocrine systems. See 29 C.F.R. § 1630.2(h)(1). The impairment must substantially limit complainant, or significantly restrict him as to the condition, manner, or duration under which he performs a particular major life activity as compared with the performance of the average person in the general population. See 29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. § 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997) (Psychiatric Disabilities Guidance). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id. For example, the Commission has consistently held that a 20-pound lifting restriction renders an individual substantially limited in the major life activity of lifting. See Lapointe v. U.S. Postal Serv., EEOC Appeal No. 01992460 (June 27, 2002). On the other hand, prior to the effective date of the ADAAA, the Commission has found that a 25 pound lifting restriction, without more, does not render an individual substantially limited in the major life activity of lifting. See Willard v. U.S. Postal Service, EEOC Appeal No. 01A40595 (Aug. 4, 2005). In this case, Complainant suffered nerve damage in his neck. Consequently, Complainant has permanent medical restrictions that preclude him from continuously lifting more than five pounds and intermittently lifting more than 26 pounds. Complainant is also restricted from continuously pushing more than 20 pounds or intermittently pushing more than 40 pounds. Upon review of this matter, we note that Complainant's lifting restrictions consist of an intermittent lifting restriction as well as a continuous lifting restriction. As such, Complainant can lift up to 26 pounds on an intermittent basis. Based on our holdings in similar cases prior to the effective date of the ADAAA, we cannot find that Complainant's restrictions substantially limited him in a major life activity. See Housh v. U.S. Postal Serv., EEOC Appeal No. 01A33300 (May 19 2005) (complainant not substantially limited in major life activity where she was restricted from lifting 10 pounds continuously and 35 pounds intermittently; See Blake v. U.S. Postal Serv., EEOC Appeal No. 07A10067 (Sept. 10, 2002) (complainant not substantially limited in lifting or working where he had a permanent lifting restriction of 10 pounds continuously and 20 pounds intermittently); Romeo v. U.S. Postal Serv., EEOC Appeal No. 01A10427 (June 24, 2002) (25-pound lifting restriction not substantially limiting); Brown v. U.S. Postal Serv., EEOC Appeal No. 01996312 (Mar. 1, 2002) (complainant not substantially limited in a major life where she was able to lift up to twenty pounds on an intermittent basis without any reaching restrictions); McMahan v. U.S. Postal Serv., EEOC Appeal No. 01982828 (September 10, 2001) (evidence did not demonstrate that complainant's restriction of lifting no more than twenty pounds intermittently over eight-hour period rendered him substantially limited in major life activity of lifting); but see Zobel v. U.S. Postal Serv., EEOC Appeal No. 0720050035 (Nov. 28, 2006) (complainant who could not lift more than five pounds continuously and 10 pounds intermittently substantially limited in major life activity of lifting). On appeal, Complainant argues that he is substantially limited in 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). In order to be substantially limited in the major life activity of working, the Commission's regulations require that an individual be restricted from performing either a broad class of jobs or a broad range of jobs in various classes. 29 C.F.R. § 1630.2(j)(3)(i). In this case, Complainant maintains that he can perform all of the duties of his Transportation Security Screener position, except bag checking because this duty requires lifting up to 70 pounds. The inability to perform a particular job for a particular employer does not constitute a substantial limitation on the major life activity of working. See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Hardeman v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54232 (June 1, 2006) (inability of complainant to lift patients or hang intravenous therapy (IV) does not render her substantially limited in performing a class of jobs or broad range of jobs). Because there is no evidence showing how Complainant's restrictions preclude him from performing a class of jobs or a broad range of jobs in various classes, we do not find that his impairment substantially limits him in the major life activity of working. Further, the Commission finds that Complainant also failed to prove that he had a record of having a disability that substantially limited one or more of his major life activities. A person has a record of a disability, pursuant to 29 C.F.R. § 1630.2(k), when he or she has a history of, or has been incorrectly classified as having, a mental or physical impairment that substantially limits one or more major life activities In this case, we note that for almost six months, Complainant was initially restricted from lifting, standing, walking bending, pulling/pushing sitting, standing, walking, climbing, kneeling, climbing, kneeling, operating machinery, and reaching above the shoulder. As stated above, these restrictions were substantially relaxed in June 2007 to allow Complainant to lift up to 26 pounds intermittently and push up to 40 pounds intermittently. Consequently, we conclude that the initial restrictions were transitory in duration. Hamer v. U.S. Postal Serv., EEOC Appeal No. 01971102 (June 29, 2000)(complainant's approximately six-month initial restrictions from lifting more than two pounds, bending, and working outdoors were transitory and not substantially limiting in a major life activity); Loniello v. Dep't of the Air Force, EEOC Appeal No. 01951539 (Sept. 18, 1996)(complainant's restrictions of three and a half months not substantially limiting); Butler v. Dep't of Affairs, EEOC Appeal No. 01930183 (Aug. 2, 1993), req. for recon. denied, EEOC Request No. 05931090 (May 12, 1994) (restrictions of six to eight months' duration transitory and not substantially limiting. Therefore, we find that under the standards applicable prior to the effective date of the ADAAA, Complainant does not have a record of a disability. Finally, Complainant argues on appeal that the Agency regarded him as disabled because it instructed him to opt out of PASS based on his limited-duty status. We note that individuals are not necessarily regarded as individuals with disabilities, as defined by the Rehabilitation Act, even though they may have been provided with a limited-duty assignment. EEOC Enforcement Guidance: Workers' Compensation and the ADA ("Workers' Compensation and the ADA"), EEOC Notice No. 915.002, at Question 2 (Sept. 3, 1996); Simonton v. U.S. Postal Serv., EEOC Appeal No. 03A10025 (Mar. 29, 2001); Bailey v. U.S. Postal Serv., EEOC Appeal No. 01952545 (individuals are not necessarily regarded as individuals with disabilities even though they may have been provided with a limited-duty assignment because of an on-the-job injury or because they have received an award from the Office of Workers' Compensation Programs) (Mar. 7, 1996). We find that Complainant has not proved that the Agency regarded him as an individual with a disability. Based upon the foregoing, the Commission finds that Complainant is not an "individual with a disability" pursuant to the standards applicable prior to the effective date of the ADAAA. Accordingly, Complainant is not entitled to coverage under the Rehabilitation Act, and therefore cannot establish a prima facie case of disability discrimination. CONCLUSION Accordingly, the Commission AFFIRMS the Agency's finding of no discrimination for the reasons set forth in this decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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), at 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 77960, Washington, DC 20013. 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 (S0610) 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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat August 20, 2014 Date 1 We note that, while Title VII does not specifically prohibit discrimination based on sexual orientation, such claims may be maintained where the facts alleged also support a claim of sex discrimination. See further discussion in text, infra. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120110576 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0120110576