James Isenberg, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.

Equal Employment Opportunity CommissionAug 10, 2000
01975186 (E.E.O.C. Aug. 10, 2000)

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.