01975186
08-10-2000
James Isenberg, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.
James Isenberg v. United States Postal Service
01975186
August 10, 2000
James Isenberg, )
Complainant, )
) Appeal No. 01975186
v. ) Agency No. 4J-460-1044-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Areas), )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether complainant proved he was discriminated against on the basis of
his physical disability (spondylolisthesis at the lumbosacral joint),
when the agency did not award him the Level 5 Mailhandler Equipment
Operator (MEO) position.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed in a permanent limited duty Level 4 Mailhandler position,
at the agency's Indianapolis Processing & Distribution Center,
Indianapolis, Indiana facility. Complainant began working for agency
in 1979. In October 1981, he sustained an on-the job injury, when he
reportedly hurt the lower part of his back while dumping a sack of mail.
Complainant informed his physician he could not lift or stay in a
bent position for a long period of time. Complainant was diagnosed
with spondylolisthesis at the lumbosacral joint, but was permitted to
return to work as long as he did not lift over 25 pounds. A May 1981
duty status report contained in the record reports that, �[p]atient
has been placed on a permanent restriction. No prolonged sitting.
No prolonged standing. No long reaching as in clerk's job. Light work.
No heavy lifting over 50 lbs.� In December 1981, the agency reassigned
complainant to a permanent light duty position in the Mailhandler craft.
His basic duties were spreading sacks.
In November 1993, complainant bid for the Mailhandler Equipment Operator
position. The Vacancy Notice described the basic functions of the
position as follows: �[o]perates a jitney, forklift, or pallet truck
for the movement of mail; and performs other Mailhandler functions as
required.� The Vacancy Notice also described the basic functions of
a Mailhandler as follows: �[l]oads, unloads, and moves bulk mail, and
performs other duties incidental to the movement and processing of mail.�
The Position Description for the Mailhandler Equipment Operator position
described the duties and responsibilities of the position as follows:
1. Operates a jitney, forklift or pallet truck, as a qualified licensed
driver in the performance of transporting mail within a postal facility;
2. Moves empty equipment utilized in transporting mail to storage or
staging areas.
Performs routine safety inspection of vehicular equipment utilized;
reports deficiencies;
Observes established safety practices and requirements;
Performs other mail handler duties when not occupied as a licensed
driver.
On December 1, 1993, the agency awarded the bid to a Full Time Mailhandler
with less seniority than complainant. In response to his inquiry, the
Human Resources Specialist informed complainant that he was not awarded
the bid because of his physical restrictions. She informed complainant
that in addition to the equipment operations duties of the position,
the incumbent was expected to move mail using All Purpose Containers
(APC's) and Bulk Mail Containers (BMC's), which must be pulled or pushed
into position.
On December 13, 1993, complainant informed the HR Specialist that,
according to the Manager of Distribution Operations, the Mailhandler
Equipment Operator basically operates a fork lift, since it is a Level
5 position. Complainant informed the HR Specialist that, �there's
nothing in my restrictions that says no pushing or pulling.� Complainant
requested that he be awarded the position, and that the agency provide
him with a reasonable accommodation.
By letter dated January 12, 1994, the HR Specialist informed complainant
that:
You were not awarded [the position at issue] because of your restrictions
� prolonged sitting which a forklift driver must do.
You have been reasonably accommodated by being furnished a permanent
light duty position.
By letter dated January 11, 1994, the MDO informed complainant that he
was scheduled for a fitness for duty examination on January 19, 1994,
in order to determined whether he was capable of performing the duties
of a Mailhandler. The results of the FFD examination are not contained
in the record.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on January 26. 1994.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
Complainant contended in his affidavit that the agency could accommodate
his disability by allowing him to get off the fork lift to stretch,
allowing another employee to assist him if he must lift something heavy;
and permitting him to sit if his back begins to hurt. In response to
complainant's affidavit, the MDO testified that in addition to operating
equipment, the Mailhandler �must occasionally load or unload a 48
foot truck, maneuver APC's, BMC's, nutters and hampers into position
to tow mail to its destination.� The MDO testified that most of the
Mailhandler duties were outside of complainant's restrictions, and
were an integral part of the Mailhandler Equipment Operator position.
In response to complainant's request for accommodation in the position,
the MDO testified, �it wouldn't be in the best interest of the Postal
Service or other employees to permit [complainant] to be awarded a job
and have to ask other employees to assist him in performing the duties
of the job.� Allowing complainant to get off the forklift would impeded
the movement of the mail and cause dispatches to be missed, since the
duties of the equipment operator are �continuous.�
Complainant filed an appeal in response to the agency's final decision,
which found no discrimination. See Isenberg v. United States Postal
Service, EEOC Appeal No. 01951666 (June 27, 1996). Therein, the
Commission found the record was insufficient to make a determination on
the merits of the complaint. Although there was medical documentation
in the record that established complainant has a back impairment,
record evidence was insufficient to determine whether complainant
was substantially limited in a major life activity. Furthermore, the
Commission was unable to determine what the essential functions of the
Mail Handler Equipment Operator position were, and what were marginal
functions of the position. Finally, we were unable to determine whether
complainant was a �qualified� person with a disability, i.e, whether
he could perform the essential functions of this job with or without an
accommodation.
As such, the prior decision remanded the case to the agency for a
supplemental investigation. On remand, the agency was ordered to
include the results of complainant's FFD examination of January 19,
1994. The agency was also directed to obtain medical documentation
from complainant regarding his impairment, including a statement from
complainant's physician indicating how his impairment substantially limits
a major life activity. The statement from the complainant's physician
was to clarify complainant's medical restrictions, recommend whether
complainant could perform the essential functions of the position and
advise as to any reasonable accommodation the agency would have to provide
in order for complainant to perform the essential functions of the job.
Finally, the agency was ordered to provide an affidavit from the MDO and
a current Level 5 Mailhandler establishing the duties during the course
of an average day, including the amount or percentage of time spent
on a given duty. Specifically, the Commission requested information
regarding the �other Mailhandler duties� an equipment operator performs.
The agency completed its supplemental investigation and issued a final
decision that concluded complainant was not discriminated against.
Specifically, the agency found complainant was not a qualified person with
a disability, and he failed to demonstrate how a reasonable accommodation
would have enabled him to fulfill the required functions of the job.
On appeal, complainant contends that the agency failed to interview a
Mailhandler Equipment Operator close in seniority to himself. He also
includes documents related to a complaint he brought against the physician
who conducted the FFD examination.
ANALYSIS AND FINDINGS
A complainant must show that he is an individual with a disability within
the meaning of the regulations.<2> EEOC Regulation 29 C.F.R. �1630.2(g)
defines an individual with a disability as one who: 1) has a physical
or mental impairment that substantially limits one or more of that
person's major life activities, 2) has a history of such impairment,
or 3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. �1630.2(i) defines "major life activities" as including the
functions of caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. �1630.2(j). 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.
In response to our prior decision, the record now contains a statement
from complainant's physician dated March 19, 1997. Therein, he states
that complainant suffers from lower back pain with spondylolisthesis.
He states complainant has recurring back pain due to muscle strain and
irritation from lifting and unusual movement. The physician reported
complainant was not restrained �except avoidance of heavy lifting to
include 50 lbs.� SI exhibit 34. He added that complainant is not
restrained from �sitting or standing for prolonged periods.�<3>
Complainant also submitted an affidavit in response to the supplemental
investigation. Therein, complainant testified that his back impairment
substantially limits his ability to perform work around the house,
including vacuuming and lifting. He states that he is unable to bend
over to clean the bathtub, has trouble getting out of bed, or getting
off of the toilet. Complainant also claims his back impairment has
limited his personal life, and he is not longer able to play sports or
work on his truck. The record reveals complainant's back impairment
is permanent. Although the record reveals complainant's ability to work
around the house is limited, we do not find he is substantially limited
in a major life activity, including caring for himself.
In addition, we find complainant failed to establish that the agency
regarded him as an individual with a disability, or that he had a record
of a disability. 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).
The inability to perform a single, particular job does not constitute a
substantial limitation on the major life activity of working. See Sutton
v. United Airlines, Inc., 527 U.S. 471 (1999). Thus, despite the agency's
findings that complainant's medical restrictions were inconsistent
with the job requirements of the Mailhandler Equipment Operator, he
failed to establish that the agency regarded him as an individual with
a disability. Likewise, complainant presented insufficient evidence
that he has a record of a disability.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.<4>
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:
August 10, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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.
2The 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.
3The results from complainant's January 1994 FFD examination are not
contained in the record. According to the physician who conducted the
FFD exam, complainant refused to answer pertinent questions and became
hostile. Accordingly, the physician reported he could not conduct
the examination. We remind complainant that the FFD examination was
for his benefit in order to allow the agency to determine whether
complainant was capable of performing the essential functions of the
job, and as such, we advise complainant to cooperate in the future.
See 29 C.F.R. �1630.14(c).
4We do note for the record that the Manager of Distribution Operations
testified in his affidavit for the supplementary investigation as to
his concern for the agency's financial obligation should complainant
injure himself. We advise the agency that testimony such as this could
be viewed as evidence of a discriminatory animus based on disability
due to an unfounded fear or stereotype, if such beliefs were the
basis for the nonselection. In the present case, however, we find
instead that complainant was not selected for the position because the
essential functions of the position were inconsistent with his medical
restrictions.