01972787
07-24-2000
Sadettin Batir, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sadettin Batir v. United States Postal Service
01972787
July 24, 2000
Sadettin Batir, )
Complainant, )
) Appeal No. 01972787
v. ) Agency No. 4-J-604-1102-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning his allegation that the agency violated the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted
by the Commission in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
the complainant based on physical disability (back injury) when: (1)
his route was awarded to another employee; (2) he was not reasonably
accommodated; (3) he was denied sick leave on several occasions; and
(4) he was harassed.
BACKGROUND
The complainant filed a formal complaint in April 1995 in which he
raised the issues identified above. Following an investigation, the
complainant did not request an administrative hearing and the agency
issued a final decision (FAD) in January 1997 finding no discrimination.
In particular, the FAD found that the complainant is not an �individual
with a disability.� It is from this decision that the complainant
now appeals.
The complainant was hired by the agency as a letter carrier in 1987 at its
facility (the Facility) in Downers Grove, Illinois. Following an injury
to his back that same year, the complainant performed modified duties
for the next several years. The complainant subsequently underwent
back surgery in 1991 and 1994, and a medical report dated October 21,
1994, describes the complainant's condition as �lumbar sublaxation
L-5/lumbar intervertebra lumbar discopathy.� The report states further,
�Due to the nature of the injuries and the reduced functional capacity
manifested as a result it is likely that the areas of injury may remain
areas of greater risk of future injury.� As a result of this condition,
the complainant had a number of restrictions, the most notable being no
lifting over 20 pounds and intermittent walking and standing.
The complainant's condition was accepted by the Office of Workers'
Compensation Programs (OWCP) in October 1994 and he was thereafter offered
the limited duty position of Router (the Position). According to the
offer, the primary duty of the Position was casing mail, and the physical
restrictions were no lifting over 20 pounds, standing and walking six to
eight hours a day, use of lumbar support while sitting, and intermittent
climbing, stooping, bending, and twisting. The offer also states,
�Any absences that are due to your accepted work related injury should
be fully documented by your treating physician (Physician of record).�
Although the complainant accepted the offer, he argues that it was
discriminatory for the agency to give his route to another employee.
In so arguing, the complainant acknowledges that he was unable to perform
the functions of his letter carrier position. He argues, however, that
the agency should have waited to see if he would recover before giving
his route away.
The complainant also contends that, after being placed in the Position,
the agency failed to accommodate him by requiring him to work outside
of his restrictions. Specifically, the complainant testified that,
instead of being provided a chair with lumbar support, he was given a
wooden stool and asked to bring a pillow from home. The complainant also
testified that he was repeatedly required to bend, stoop, reach above
his head, and lift more than 20 pounds. In response, the complainant's
immediate supervisor (Responsible Official 1, RO 1) testified that he
always abided by the complainant's limitations and never required him to
work outside of them. RO 1 did note that there were several occasions
when the complainant wanted to work outside his restrictions, including
in January 1995 when the complainant asked to deliver Express Mail.
The Facility's postmaster (RO 2) testified that the complainant was never
worked outside of his restrictions, and that, when he was initially placed
in the Position, he asked for and received a chair with a back support.
According to RO 2, the complainant did not like the chair, at which
point the complainant's rehabilitation counselor bought the complainant
a chair which he used until he left the Facility.<2> Like RO 1, RO 2
testified that the complainant occasionally wanted to perform work that
was outside of his restrictions.
The complainant also contends that the agency denied him sick leave on
approximately five occasions in November 1994. ROs 1 and 2 testified that
the reason the sick leave was not granted was because the complainant,
contrary to one of the requirements of being placed into the Position,
had not submitted documentation from his treating physician justifying
those absences.
ANALYSIS AND FINDINGS
To establish a prima facie case of disability discrimination under
a disparate treatment and/or a failure to accommodate theory, the
complainant must demonstrate that: 1) he is an �individual with a
disability� as defined in 29 C.F.R. � 1630.2(g);<3> 2) he is a
�qualified individual with a disability� as defined in 29 C.F.R. �
1630.2(m); and (3) he was subjected to an adverse personnel action under
circumstances giving rise to an inference of disability discrimination
and/or denied an accommodation. See Prewitt v. U.S. Postal Service,
662 F.2d 292 (5th Cir. 1981).
An �individual with a disability� is defined as someone who: (1) has
a physical or mental impairment which substantially limits one or more
of such person's major life activities; (2) has a record of such an
impairment; or (3) is regarded as having such an impairment. 29 C.F.R. �
1630.2(g)(1)-(3). �Major life activities� include functions such as
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i).
Although the complainant has several limitations related to his back
injury, the Commission finds he has not demonstrated that this condition
substantially limits a major life activity. In so finding, we conclude
that the complainant's most notable limitation, i.e., the 20-pound
lifting restriction, does not substantially limit his ability to lift.
Accordingly, we find the complainant has not established that he has an
actual disability. The Commission also finds insufficient evidence to
conclude that the complainant had a record of a substantially limiting
impairment or that he was regarded by agency officials as having such
an impairment. Consequently, the Commission finds the complainant has
not established that he is an �individual with a disability.�
Assuming, arguendo, that the complainant could establish that he is
an �individual with a disability,� as well as a �qualified individual
with a disability,� we find he has not demonstrated that the challenged
actions were either based on his disability or that he was denied an
accommodation. Prewitt v. U.S. Postal Service, 662 F.2d at 305-309.
With regard to Issue 1, the record reveals that the complainant's route
was only assigned to another employee after the complainant, by his own
admission, became physically unable to perform in it.
Regarding Issue 2, i.e., that the complainant was not accommodated,
the record does not support his contention that he was worked outside of
his restrictions. Specifically, not only did ROs 1 and 2 both testify
that the complainant was not worked outside of his restrictions, but
the complainant has offered no specifics in support of his contention,
such as the duties he was allegedly required to perform that went beyond
his restrictions. With regard to Issue 3, ROs 1 and 2 offered unrebutted
testimony that the reason the five sick leave requests were not granted
was because he did not submit documentation from his treating physician
justifying the absences.
Finally, although the complainant alleges that the actions set forth in
Issues 1 through 3 constitute discriminatory harassment, the Commission
finds he has not made such a showing. In so finding, the Commission
concludes that the actions in question were not "sufficiently severe
[and] pervasive to alter the conditions of [the complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999). Accordingly, the Commission
finds the complainant has not established that he was discriminated
against based on his disability.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is the
decision of the Commission to AFFIRM the FAD and find the complainant has
not established that the agency discriminated against him as alleged.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__07-24-00____ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 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.
02 The record reveals that, at the time the complainant filed his
complaint, he was on a detail to another facility.
03 The 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.