David U. Unterburger, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01974776 (E.E.O.C. Feb. 1, 2000)

01974776

02-01-2000

David U. Unterburger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.


David U. Unterburger v. United States Postal Service

01974776

February 1, 2000

David U. Unterburger, )

Complainant, ) Appeal No. 01974776

)

v. ) Agency Nos. 1I-554-1054-95

)

William J. Henderson, ) Hearing Nos. 260-97-9019X

Postmaster General, )

United States Postal Service, )

(Great Lakes/Midwest Area), )

Agency. )

_______________________________)

DECISION

Complainant filed an appeal with this Commission from a final decision

of the United States Postal Service (agency) concerning his 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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et

seq. <1> Complainant alleges discrimination based upon his physical

handicap (left arm amputee) and reprisal (prior EEO activity) when, on

May 30, 1995: (1) he was brought back to work after being on Workers'

Compensation for three and a half years; (2) he was assigned the same

position which he had held on December 12, 1988, which the Office of

Workers' Compensation Programs (OWCP) had found not acceptable for him;

and (3) he was placed on restricted sick leave. The appeal is accepted

in accordance with EEOC Order No. 960.001.

On July 12, 1995, complainant filed a formal complaint alleging

discrimination as referenced above. Complainant's complaint was

accepted for processing. Following an investigation, complainant

requested a hearing before an EEOC Administrative Judge (AJ). However,

pursuant to 29 C.F.R. � 1614.109, the AJ rendered a recommended decision

without a hearing on May 2, 1997, finding no discrimination. The agency

subsequently adopted the AJ's recommended decision. It is this agency

decision which the complainant now appeals.

Complainant began his employment with the agency on January 9, 1982,

as a distribution clerk. He transferred to the mail handler craft in

1986. In the later 1980s, complainant began experiencing pain in his

right arm and was assigned to several limited duty positions within his

physical restrictions. Complainant was placed in the "tear-up" unit.

During this period he filed an EEO complaint regarding the alleged

failure to accommodate his handicap. The complaint was settled

by placing complainant into a guard position. In 1991, all guard

positions were abolished. It was found that there were no positions

available for complainant within his work restrictions. For the next

3 � years complainant was considered totally disabled by the Department

of Labor, Office of Workers' Compensation Programs (OWCP) and received

full benefits. Complainant did not file a grievance or EEO complaint

concerning his being sent home.

On May 9, 1995, complainant received a job offer from the Senior

Injury Compensation Specialist<2> (ICS) which stated that his

medical records indicated that he was able to return to work with

certain medical restrictions. According to the letter from the ICS,

complainant's treating physician, (P1) and the agency's physician,

(P2) indicated that complainant was able to return to work to a position

within his restrictions which P1 defined as follows: (1) can lift/carry,

push/pull up to 25 pounds; (2) can frequently lift/carry with right arm

1-10 pounds; (3) can occasionally work/reach over the shoulder 21-25

pounds (occasionally up to 20 pounds); (4) should limit torque (power

gripping) activities and twisting with right hand; (5) can perform fine

manipulation with right hand 5-6 hours per day with flexibility breaks

of 90-120 seconds every 20-30 minutes. The ICS offered complainant the

position of Modified Mail Handler. The letter also contained language

advising complainant that an absence due to his accepted OWCP condition

would have to be documented and approved by OWCP.

Complainant accepted the position and commenced work. On May 30, 1995,

complainant advised the agency that the Modified Mail Handler Position was

detrimental to his health and that his arm and shoulder have not improved

since he was placed on OWCP disability in 1991. In addition, complainant

requested a reasonable accommodation which included an electric tape

machine, an electric scissor and an adjustable orthopedic chair.

While the Modified Mail Handler position allowed for certain physical

restrictions, the position also expressly required the use of both hands.

We find the record insufficient to determine whether or not complainant

was discriminated against as alleged. First, we find the record

insufficient in establishing that complainant is a qualified individual

with a disability within the meaning of the Rehabilitation Act. While the

record indicates that complainant suffers from a physical impairment (left

arm amputee), the record is devoid of specific information regarding

whether complainant's physical impairment substantially limits one

or more life functions, taking into account the negative and positive

effects of any mitigating measures utilized by complainant, such as a

prosthetic device. See Sutton v. United Air Lines, Inc., 130 F.3d 893,

aff'd, Sutton v. United Air Lines, Inc., 119 S.Ct. 2139 (1999); Murphy

v. United Parcel Service, Inc., 119 S.Ct. 2133 (1999).

Secondly, we find the record fails to indicate whether or not the Modified

Mail Handler position falls outside complainant's medical restrictions.

While complainant's doctor set forth specific work restrictions as set

forth above, there is no evidence in the record that P1 approved of the

particular position that complainant occupies. The record indicates that

the position requires the use of two hands. Yet there is no evidence in

the record that complainant's prosthetic device enables him to maneuver

as if he had two hands.

Thirdly, the record also indicates that complainant requested three

accommodations. Yet, there is no evidence in the record that addresses

how an electric tape dispenser, an electric scissor and an adjustable

orthopedic chair are necessary to accommodate complainant's identified

disability (left arm amputee) or how the agency responded to complainant's

request. While complainant identified his physical impairment as being

a left arm amputee, the record contains evidence that complainant has

physical impairments in his back, right arm and right wrist areas.<3>

Moreover, while the agency alleges that complainant's own physician

declined to approve of the requested accommodations, such allegation is

not supported by evidence in the record. The record contains no statement

by complainant's physician which confirms this assertion. There is no

evidence in the record showing that the agency engaged in the interactive

process in attempting to determine whether or not complainant was working

outside his medical restrictions or that his requests were unreasonable.

The most recent medical documentation provided in the record includes a

letter from complainant's physician, dated August 30, 1994, documenting

complainant's restrictions unrelated to any specific job. The record

also contains a physician's<4> letter, dated March 14, 1995, recommending

that before proceeding with a determination of work restrictions for

complainant, an assessment based on objective findings be conducted

to determine "whether there is any residual or recurrent right carpal

tunnel syndrome or whether there is any significant pathology in the

right shoulder." Given the medical documentation in the record, it

remains unclear whether complainant was placed into a position outside

his physical limitations.

Accordingly, the Commission finds that the evidence is insufficient

to determine whether complainant is a qualified individual with a

disability, and, if so, whether the agency met its obligation to

reasonably accommodate him under the Rehabilitation Act.

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

VACATE the agency's final decision finding no discrimination and REMAND

the case to the agency for a supplemental investigation in accordance

with our order below.

ORDER (D1092)

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

The agency shall obtain affidavits from those individuals who were

directly involved in determining whether complainant was able to perform

the modified Mail Handler duties and in developing the May 8, 1995

job offer. At a minimum, the following information should be provided:

an explanation from agency officials as to how complainant is able to

perform the essential functions of the modified Mail Handler position,

including, but not limited to, how he is able to perform tasks that

require the use of two hands;

a statement by complainant describing the exact job requirements that

he is incapable of performing and why.

an explanation from agency officials of how it was determined that

complainant was capable of performing tasks associated with the modified

Mail Handler position;

an explanation from agency officials of how they responded to

complainant's complaints regarding his inability to perform most of

the tasks assigned and his requests for reasonable accommodations;

complainant's, his co-workers', and his supervisors' description of the

actual job requirements (as opposed to the written position description

in the record) of the modified Mail Handler position;

In addition, the agency shall obtain the following information:

statement by complainant's physician(s) regarding: (1) complainant's

ability to perform the duties required by the modified Mail Handler

position as described by complainant, complainant's co-workers and

supervisors; and (2) outlining specifically, when taking into account any

mitigating devices, how complainant's physical impairment(s) substantially

limit one or more major life functions.

complainant's medical records that pertain to his alleged disability

(including, his back condition and right arm condition) which are

contained in his OWCP file #A10-352021, including, but not limited to,

medical records dated October 6, 1993;

information on all comparative employees identified by complainant,

including, but not limited to, (1) type of injury/disability of each

individual; (2) all positions held by each individual during the relevant

time period; (3) the identity of each individual's supervisor; (4) each

individual's workers compensation status; (5) the alleged preferable

treatment provided to each individual; and (6) prior EEO activity status

of each individual;

an affidavit by complainant's rehabilitation counselor discussing all

issues relevant herein; and

a rebuttal affidavit from complainant which responds to the following:

(1) the information obtained in the supplemental investigation; and (2)

outlining specifically, when taking into account any mitigating devices,

how his physical impairment(s) substantially limit one or more major

life functions.

The supplemental investigation must be completed within ninety (90)

calendar days of the date this decision becomes final. 29 C.F.R. �

1614.108(e). The agency then shall provide complainant with a copy of

the supplemental investigative file. Thereafter, the agency shall issue

a final agency decision within sixty (60) calendar days. A copy of the

agency's notice transmitting the investigative file to the complainant

must be submitted to the Compliance Officer, as referenced below.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision."

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 (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

2/1/00

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

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 Senior Injury Compensation Specialist manages complainant's workers

compensation case, but has no supervisory relationship with complainant.

3 We note that it seems reasonable from the limited medical records

provided that complainant's right arm and back impairments are problems

which stem from the amputation of his left arm.

4 The record does not clarify the relationship between complainant and

this physician.