EEOC finds federal employee did not prove he is disabled within the meaning of the EEO law. Believing he was the victim of discrimination on the basis of physical disability (left knee injury), Complainant sought Equal Employment Opportunity (EEO) counseling and subsequently filed a formal EEO complaint. Following the initial investigation, a hearing was held and the Administrative Jude (AJ) issued a recommended bench decision finding no discrimination. The Agency adopted the AJ’s decision in a Final Agency Decision (FAD) in which the AJ found that the Complainant’s claim constituted a claim of disparate treatment discrimination, and as a result the Complainant failed to establish a prima facie case of disability discrimination because he failed to submit evidence of a physical impairment that rose to the level of a physical disability. The AJ supported her finding by noting that Complainant received a 10% disability rating that was discontinued when the Veterans Administration (VA) determined that his disability was less than 10% disabling. The AJ further noted that the Complainant testified that his disability did not affect him performing the duties of his job. Complainant appealed to the Equal Employment Opportunity Commission’s (EEOC’s) Office of Federal Operations (OFO), arguing that because he received a Veteran’s preference from the Agency when he was hired, he was perceived as being disabled, and reiterated arguments that highlighted that his disability made it difficult for him to run, walk, and stand for prolonged periods.

On appeal the OFO held that the Complainant failed to present sufficient evidence to establish that he is a disabled individual within the meaning of the Rehabilitation Act, as aside from his testimony, he did not offer any evidence of his alleged disability. However, the OFO noted that the Complainant may also prove he is disabled by not only establishing that he has a physical impairment which substantially limits a major life activity, but also by proving that he either has a record of such impairment, or is regarded as having such an impairment. Despite this other opportunity to prove a disability, the OFO held that the Complainant failed to do so. The OFO affirmed the Agency’s final decision finding no disability discrimination.

 

Thomas McGrady v. United States Postal Service, EEOC Appeal No. 01976169 (July 10, 2000) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01976169.txt