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.