T. 6/9/93 JUL 23 1993 XXXX XXXX XXXX Re: Complaint Number XXXX Dear Mr.

XXXX: This letter constitutes the Department of Justice's Letter of Findings with reference to your complaint that the Oshkosh Correctional Institution is discriminating against you on the basis of your disability by refusing to provide you with "tens pads" for your back. The Department of Justice is the agency responsible for investigating this complaint under title II of the Americans with Disabilities Act of 1990 [ADA], which prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local government entities, such as prisons. We conducted a preliminary review of your complaint and related correspondence and determined that you do not meet the criteria for being considered a qualified individual with a disability as defined by the Department of Justice's title II regulation [copy enclosed]. Our regulation, at 35.104, defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." Major life activities are defined, also at 35.104, to include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. In your correspondence to us, you indicate that your disability consists of "a buried disc" and possibly a pinched nerve. Although we do not dispute your claim that you are in serious pain, your disability does not appear to rise to the

cc: Records CRS Chrono Friedlander Milton.complnts. XXX.lof

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-2level of substantially limiting one or more major life activities. You say that your disability makes it hard for you to lift things. Lifting things, however, is not considered a major life activity. Furthermore, while you say that your pain is "at times" so acute that you can barely move, apparently at other times this is not the case, and duration of an impairment is one factor that may properly be considered in determining whether the impairment substantially limits a major life activity. Only qualified individuals with disabilities are afforded protection under title II of the ADA. We have determined that you are not a qualified individual with a disability as defined in the title II regulations. We are therefore closing our files in regard to your complaint as of the date of this letter. This letter constitutes our Letter of Findings with respect to your allegations of discrimination in your administrative complaint. If you are dissatisfied with our determination, you may file a private complaint in the United States District Court under title II of the ADA. Please be advised that your right to file a complaint is protected by Federal law. A State or local government may not intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone who has either taken action or participated in an action to secure rights protected by the ADA. If at any time you feel you are being harassed or intimidated

because of your dealings with the Department of Justice, we urge you to let us know immediately. This office will investigate such a complaint if the situation warrants. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy. Sincerely,

Stewart B. Oneglia Chief Coordination & Review section Civil Rights Division Enclosure 01-00054