Darlynn Bell v. United States Postal Service 01974429 March 6, 2000 Darlynn Bell, ) Complainant, ) ) v. ) Appeal No. 01974429 ) Agency No. 1C-431-0003-97 William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) ) DECISION On May 6, 1997, the complainant initiated an appeal from a final decision of the agency dated April 14, 1997 concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and §501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq.<1> The appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29 C.F.R. § 1614.402(a)), and is accepted under 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29 C.F.R. § 1614.401(a)). ISSUE PRESENTED Whether the complainant was discriminated against on the bases of her disability (lumbar muscle strain) and reprisal (EEO activity) when she was scheduled for a second fitness for duty examination in September 1996. BACKGROUND The complainant filed an EEO complaint alleging the above issues. Following an investigation, the agency notified the complainant of her right to request a hearing before an EEOC Administrative Judge. She requested a final agency decision without a hearing. The complainant is employed as a mail handler with the agency's Columbus, Ohio Processing and Distribution Center. In August 1995 she requested and was granted light duty to meet her restrictions against lifting above 50 pounds, repeated bending, and operating a motor vehicle crane or tractor. The record contains periodic light duty slips completed by the complainant's private physician. A slip in September 1995 stated that the complainant had lumbar muscle strain. It indicated she could work 10 hours a day, 6 days a week and could lift up to 50 pounds, but was restricted from lifting up to 70 pounds. It prohibited bending, repeated bending, and operating a motor vehicle crane or tractor. These restrictions were estimated to last three to six months. Light duty slips completed by this private physician in November and December 1995 contained the same restrictions, except they were clarified or changed to no stooping, kneeling or bending with the back, and no repeated bending. Light duty slips completed by this private physician in January, February and April 1996 were eased to allow a 12 hour work day. At the agency's behest, the complainant underwent a fitness for duty examination in May 1996. It was conducted by Contract Physician 1. The fitness for duty report recounted that the complainant had a back injury in 1989, and an aggravation thereof in June 1990. It recounts she had physical therapy, and was on light duty for about two years, around which time she switched to a unit with easier lifting requirements. It recounted that the complainant stated she changed to a different unit again in early 1995, where she had an increase of low back pain. The fitness for duty report had a diagnosis of lumbrosacral strain. It opined that the complainant had not reached maximum medical improvement, and estimated that when she did she would have a permanent partial disability of 5%. A light duty slip completed by the complainant's private physician in May 1996, after the fitness for duty report, continued with the same restrictions the private physician previously gave in 1996. At the behest of the complainant's second level supervisor, the complainant underwent the second fitness for duty examination at issue in September 1996. It was conducted by Contract Physician 2. The fitness for duty report noted that the complainant had physical therapy from August 1995 to October 1995, where it was discovered one leg was shorter than the other. The fitness for duty report stated one leg was 1.5 to 2 centimeters longer than the other. Recounting a physical therapy note, it stated the complainant was given a heel lift which resulted in a significant reduction in low back pain. It opined that the complainant had an impairment of 5% at most, and no restrictions. With regard to the complainant's reprisal claim, the second level supervisor stated she was a responding witness in January 1996 on an EEO claim by the complainant. ANALYSIS AND FINDINGS McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides the analytical framework for proving employment discrimination in cases in which disparate treatment is alleged and no direct evidence of discrimination has been presented. Although McDonnell Douglas is a Title VII case, its analysis is also applicable to disparate treatment cases brought under the Rehabilitation Act. See Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981). McDonnell Douglas requires the complainant to first establish a prima facie case. If the complainant succeeds, the agency's burden then is to articulate some legitimate, nondiscriminatory reason for its action in order to rebut the prima facie case of discrimination. Finally, the complainant has the opportunity to show, by a preponderance of the evidence, that the agency's stated reason is a pretext for discrimination. The ultimate burden of proof that discrimination took place is on the complainant. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). As a threshold matter, one bringing a claim of discrimination on the basis of disability must show that she is a qualified individual with a disability within the meaning of the Rehabilitation Act. Under 29 C.F.R. § 1630.2(g), the definition of 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 an impairment or (3) is regarded as having such an impairment. Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(g)(i).<2> The complainant has the impairments of back pain and shortness in one leg of 1.5 to 2 centimeters. Light duty slips by the complainant's private physician have restrictions against lifting over 50 pounds, stooping, kneeling, or bending with the back, and repeated bending. The complainant affirmed that she was restricted from lifting over 50 pounds, repeated bending, and operating a motor vehicle crane or tractor, but could stoop. These impairments; and restrictions, and even if accepted as permanent, do not constitute a substantial limitation on a major life activity. Also, the complainant has taken the measure of using a heel lift to mitigate the impairment of her shorter leg. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2146 (1999). Further, the complainant has not established that she has a record of an impairment which limits a major life activity. There is no indication in the record that her restrictions were ever greater than those stated above for a significant length of time. Finally, the record does not show that the agency regarded the complainant as having a disability. The complainant is not an individual with a disability as defined by the regulations. Accordingly, she has failed to establish a prima facie case of disability discrimination. Since the agency articulated legitimate, nondiscriminatory reasons for issuing the complainant a notice of removal, as set forth below, we may proceed directly to whether she demonstrated by a preponderance of the evidence that the agency's reason was merely a pretext to hide discrimination based on reprisal. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). The second level supervisor stated the complainant was on temporary light duty for a year, which is no longer temporary status, and could not perform the core functions of the mail handler position. This supervisor stated she initiated the second fitness for duty examination because she needed to know if the complainant would ever return to regular duty. Contemporaneous agency administrative paperwork processing the request for the second fitness for duty examination corroborates this was the reason the second level supervisor's gave for requested the examination. In an effort to prove pretext, the complainant argued she was treated differently than others. She failed to establish disparate treatment. The complainant argues that it was unusual to schedule two fitness for duty examinations only months apart, and its purpose was to remove the complainant from her bid job. She argued, without corroboration, that she performed the core functions of her job. The complainant did not show that the agency's reason for requesting the second fitness for duty examination was pretext to mask reprisal discrimination or otherwise prove discrimination. CONCLUSION Based upon a review of the record, and for the foregoing reasons, it is the decision of the Commission to AFFIRM the final decision of the agency which found that the complainant was not discriminated against when she was scheduled for a second fitness for duty examination in September 1996. 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: March 6, 2000 Date Frances M. Hart Executive Officer Executive Secretariat CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: Date 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 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.