01962857
01-05-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.
David R. Simandl v. United States Postal Service
01962857
January 5, 1999
David R. Simandl,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes/Midwest Area),
Agency.
Appeal No. 01962857
Agency No. 4-L-1073-2
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that the agency discriminated against
him on the bases of physical disability (ulcerative colitis), mental
disability (chemical imbalance) and reprisal (prior EEO activity) when
he was terminated on June 6, 1991 and he was denied reinstatement in
July 1991, in violation of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The Commission hereby accepts the
appeal in accordance with EEOC Order No. 960.001.<1> For the following
reasons, the FAD is AFFIRMED in part and REVERSED in part.
At the time of the alleged discriminatory event, appellant was employed
as a distribution clerk at the agency's Oakbrook, Illinois facility.
Believing that he was the victim of discrimination, appellant sought
EEO counseling and filed a formal EEO complaint dated May 26, 1994.
In his complaint, appellant asserted that he was discriminated against as
noted above. At the conclusion of the investigation, the agency issued a
Notice of Proposed Disposition (NPD), finding no discrimination. The NPD
also advised appellant of his right to request an administrative hearing.
Thereafter, appellant requested a hearing before an EEOC Administrative
Judge (AJ). On March 19, 1993, the AJ remanded the case to the agency
and ordered a supplemental investigation (1st supplemental investigation)
into appellant's additional claim that he was discriminated against
because of a chemical imbalance (atypical psychosis).
The 1st supplemental investigation included extensive documentation
relative to appellant's hospitalization for treatment of the chemical
imbalance. At the time of his hospital admission in May 1991, a physician
completed a routine history on appellant. In this report the physician
noted that based on the available records appellant had never had past
psychiatric treatment or been hospitalized. The physician noted that
appellant had been off work since March 1991 due to a flare-up of colitis.
The flare-up caused diarrhea and blood in appellant's stool and resulted
in appellant receiving a colonoscopy a week and a half before hospital
admission. The physician also noted that appellant takes "folic acid po"
daily for treatment of the colitis.
On May 27, 1991, appellant underwent a psychological evaluation. The
physician diagnosed appellant as having an atypical psychosis on Axis I,
schizotypal personality Disorder on Axis II, ulcerative colitis on Axis
III, and psychosocial stressor: 4-severe. The physician further noted
that:
The present results, while not technically invalid, were compromised
in terms of clinical utility because of [appellant's] significant
defensive posture. Nevertheless, the results do confirm the presence
of a psychotic condition with the possibility of these symptoms being
either the result of a paranoid schizophrenic condition or an underlying
bipolar disorder. There is not much evidence clinically to suggest a
bipolar disorder which tends to add more weight to the hypothesis of
[appellant's] current condition being a paranoid schizophrenic reaction
or a simple psychosis with paranoid features. Again, however, he has
experienced a rather lengthy period of psychological deterioration which
would be consistent with a schizophrenic reaction.
The physician recommended anti-psychotic medication in addition
to a treatment plan that emphasized concrete tasks and avoided more
abstract introspection. On June 21, 1991, appellant was transferred to
a mental health center. The physician's diagnosis remained essentially
consistent.
At the completion of the 1st supplemental investigation, appellant was
again advised of his right to an administrative hearing. When appellant
failed to respond, the agency issued a FAD on March 21, 1994, finding
no discrimination. Appellant appealed that decision to the Commission.
In the prior decision (see footnote 1), the Commission found that: (1)
appellant's oversight in failing to request a hearing did not excuse his
waiver of the same; and (2) in addition to other specific and necessary
information which was not set forth in the record, the agency needed to
conduct a supplemental investigation (2nd supplemental investigation) into
whether appellant was requesting a reasonable accommodation and into what
accommodation efforts were made on his behalf. The Commission concluded
that information concerning the agency's accommodation efforts was pivotal
to the disposition of this case. The agency was further directed to
issue a FAD after the supplemental investigation was completed.
At the conclusion of the 2nd supplemental investigation the agency
issued a FAD, dated January 25, 1996, again finding no discrimination.
It is from this agency decision that appellant appeals.<2> On appeal,
appellant alleges, among other things, that the FAD failed to address
the specific supplemental information ordered by the Commission.
The investigative record reveals that March 26, 1991, was appellant's last
day of work. On April 15, 1991, appellant received a letter from the
agency asking him to submit, within five days of receipt of the letter,
acceptable documentation to support his incapacity to report to work.
The letter also advised appellant that failure to comply could result
in disciplinary action, up to and including removal. This letter was
issued by the Supervisor of Mails (SOM). When the agency did not receive
a response from appellant, the agency issued a Notice of Removal (NOR)
dated May 2, 1991. The NOR stated that appellant was removed, effective
June 7, 1991, for being absent without leave (AWOL), and irregular in
attendance since March 26, 1991. This letter was also issued by the SOM.
Appellant explained that around the third week of April he telephoned
the Superintendent of Postal Operations (SPO) and requested that his
vacation be changed from the first two weeks of June 1991 to the last two
weeks of April 1991. Appellant's affidavit did not indicate whether he
specifically informed the SPO that his colitis flare-up was the reason
he requested the change. Appellant alleged that the SPO told him that
he would get back to him but he never did. Appellant alleged that the
following week he sent a letter to the Postmaster reiterating his vacation
request. Again, appellant alleged that he did not receive a response.
He alleged that since he could not get an advance on his scheduled
vacation, he began calling in sick daily and visited his physician for
his medical condition.<3> Appellant alleged that his colitis prevented
him from working and that he saw his physician around April 28 and May 2,
1991.
In a letter dated May 2, 1991, addressed "To whom it may concern" a
medical physician stated "[Appellant] may return to work May 3, 1991.
He has been having a flare-up of ulcerative colitis since March 28th.
He should return to light duties for 1 months[sic]." On May 21, 1991,
appellant was admitted to the hospital for a chemical imbalance.<4>
On July 17, 1991, appellant phoned the SPO who informed him that he
should write a letter to the Postmaster requesting reinstatement.
The record contains a letter dated July 1991, from appellant to the
Postmaster. In the letter appellant requested reinstatement and he
informed the Postmaster that he had been on short term disability and had
substantiating medical documentation. Appellant stated that he attached
the physician's May 2, 1991 letter to his request. Appellant was released
from the hospital on August 29, 1991.
The SOM testified that he was aware of appellant's prior EEO complaints.
However, he asserted that he was unaware of appellant's disability and
that he did not consider appellant disabled. The SOM acknowledged that
appellant requested sick leave between January 1991 and April 13, 1991,
but he explained that appellant failed to document his absence or sign
the leave request (PS Form 3971). In addition to appellant, the SOM
identified two other individuals whom he issued NORs to in July 1989
and January 1992 for failure to be regular in attendance.
The SOM testified that in addition to appellant he issued NORs for three
employees between July 1989 and January 1992 for failure to be regular
in attendance. Two of these individuals had engaged in prior EEO activity
and one alleged a disability. With regard to the SOM's assertion that he
was unaware of appellant's physical disability, the record reflects that
in one of appellant's prior EEO complaints (Agency Case No. 4-L-0014-7,
filed on November 12, 1986), appellant identified the SOM as a responsible
official whom he alleged discriminated against him on the basis of
prior EEO activity and disability (chronic left-sided colitis). In his
supplemental investigative affidavit, the SOM testified that Agency Case
no. 4-L-0014-7 was closed in 1988 with a finding of no discrimination.
The agency presented no other evidence concerning the disposition of
case no. 4-L-0014-7. The SOM further acknowledged that the record of
that case reflected doctors had treated appellant for colitis since 1985.
However, the SOM stated that the colitis did not prevent appellant from
completing his duties as a Distribution Clerk. He further asserted that
the removal action was based on appellant's failure to comply with meeting
and attendance requirements, not on appellant's colitis condition.
The SPO testified that he was unaware of appellant's prior EEO activity,
and that he did not perceive nor consider appellant to be disabled.
The SPO confirmed that around the third week in April appellant requested
a change of his vacation schedule. However, the SPO maintained that he
told appellant that the vacation schedule was full, and that, if he was
sick he should see a doctor. He contended that he would not authorize
the vacation change since appellant had been AWOL since March 26, 1991.
The SPO stated that he asked appellant when he was going to the doctor
and advised him to provide medical documentation for his absence. The SPO
stated that appellant did not respond to his question. He affirmed that
he contacted appellant's physician of record to determine when and how
appellant could see a doctor. He asserted that he was informed that
appellant could be seen by a doctor right away. The SPO stated that
by May 2, 1991, appellant failed to provide acceptable proof supporting
his requested absences.
In the prior decision, we concluded that there was not sufficient
information to determine whether appellant was a qualified individual
with a disability during the relevant time frame. The Commission further
noted that the record was not clear on whether appellant was alleging
disparate treatment as the result of his removal or whether appellant
was in fact stating that the agency had failed to grant his request for
an accommodation.
The Commission directed the agency as follows:
A. Have appellant clarify whether he is alleging that the agency failed
to reasonably accommodate his absences because of his physical and/or
mental disability.
1. If appellant is alleging a failure to accommodate, then the agency
shall provide affidavits from agency witnesses attesting to the agency's
reasonable accommodation efforts on appellant's behalf.
B. Regardless of whether appellant is alleging reasonable accommodation,
the agency shall provide appellant with an opportunity to supplement
the record with medical evidence relative to his ulcerative colitis, the
treatment he received for this condition, and the extent of the effect of
this condition on his major life activities. This documentation should
explicitly address the ulcerative colitis during the period between March
26, and June 1991, to cover the period which led up to the colonoscopy.
C. With regard to the agency's officials [sic] awareness of appellant's
physical disability, the agency shall supplement the record with
information relative to the processing of Agency Case No 4-L-0014-7.
The agency shall also have the SOM [supervisor of mails] provide
an affidavit regarding the extent of his awareness of this prior
EEO complaint as well as his statement regarding his unawareness of
appellant's physical disability in the instant matter.
The supplemental record revealed no statements concerning reasonable
accommodation efforts made on behalf of appellant. Additionally,
in a letter submitted by appellant's psychiatrist, he concluded that
the colitis precipitated appellant's atypical psychosis and that the
Presdnisone which was administered to treat the colitis could precipitate
a psychotic episode.
Applying the legal standard outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D.Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976)(applying the McDonnell Douglas standard to reprisal cases),
we find that appellant established a prima facie case of reprisal
discrimination based on the proximity of the previous EEO complaints.
However, beyond his bald assertions, appellant failed to show that the
agency's actions were pretextual. Accordingly, after careful review
of the record, the Commission finds that the agency's final decision
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. The Commission discerns no basis for
disturbing the agency's finding of no discrimination on this basis.
With respect to appellant's disability claims, we are unpersuaded by
the agency's position that it did not discriminate against him based
on failure to reasonably accommodate physical and mental disabilities.<5>
By regulation, the federal government is charged with becoming "a model
employer" of individuals with disabilities. 29 C.F.R. �1614.203(b).
This goal was expressed by Congress when it enacted the Rehabilitation
Act. Gardner v. Morris, 752 F.2d 1271 (8th cir. 19850; Prewitt
v.United States Postal Service, 662 F.2d 292 (5th Cir. 1981). Federal
agencies must make reasonable accommodation for the known physical
and mental limitations of a qualified disabled employee, unless the
agency can demonstrate that accommodation would prove to be an "undue
hardship." 29 C.F.R. �1614.203(c). To establish a prima facie case of
discrimination based on failure to accommodate a disability, appellant
must show that 1) he is an individual with a disability as defined in
29 C.F.R. �1614.203(a)(1); 2) he is a "qualified" individual with a
disability as defined in 29 C.F.R. �1614.203(a)(6); and 3) the agency
took an adverse action against him. See Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). Appellant also must demonstrate
a causal relationship between his disabling condition and the agency's
reasons for the adverse action.
Appellant first must show that he is an individual with a disability
within the meaning of the regulations. EEOC Regulation 29 C.F.R.
�1614.203(a)(1) 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. �1614.203(a) (3) 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.
Here, sufficient evidence was presented to show that the ulcerative
colitis substantially limited appellant's ability to work. Moreover,
appellant was diagnosed as having "experienced a rather lengthy period of
psychological deterioration which would be consistent with a schizophrenic
reaction" and hospitalized. Furthermore, there is sufficient evidence
that the colitis precipitated the psychosis. Therefore, during the
relevant time frame, he was disabled as defined by our regulations.
With respect to the second prong of the prima facie case of disability,
a qualified disabled person is one who can perform the essential functions
of the position in question with or without reasonable accommodation.
29 C.F.R. �1614.203(a)(6). We note that the only question raised as to
whether appellant could perform the essential functions of the position
in question with or without reasonable accommodation pertains to his
absences. Commission precedent makes it clear that in a case involving
excessive absences from work, a complainant may prove that she or he
is a "qualified disabled person"--in spite of such absences--by first
showing that there is a sufficient nexus between the absences and the
purported disability. See McCullough v. United States Postal Service,
EEOC Request No. 05950539 (April 25, 1996); Southerland v. United
States Postal Service, EEOC Request No. 05930714 (July 15, 1994); Omar
v. United States Postal Service, EEOC Request No. 05920207 (May 14, 1992).
Appellant has alleged, and the supplemental medical documentation has
confirmed, that appellant's absence was the result of the flare-up of his
colitis and the emergence of his mental illness. Consequently, appellant
was in need of unscheduled leave as an accommodation. The record further
shows that he made the agency aware of his need to be absent at least
by the third week of April 1991. Accordingly, we find that appellant
has established a nexus between his disability, his need to be absent
and the agency's actions. On these facts, and based on the record,
we find that appellant was a qualified individual with a disability.
We note that the supplemental record revealed that appellant was treated
for ulcerative colitis since he was 16 years old. Also, while the
record shows that the agency was aware of appellant's medical history
with colitis there is no evidence in the record that the condition
substantially limited any of appellant's major life activities prior to
the flare-up that resulted in his removal. However, a fair reading of his
complaint shows that he was alleging that the agency failed to grant him
a reasonable accommodation to be absent from work while he sought medical
treatment. Further, as stated in the previous decision, appellant's call
to the SPO placed the agency on notice that the ulcerative colitis was
preventing him from coming to work. In this regard, we have previously
held that an employee's "periodic unscheduled absenteeism" should serve as
a signal to an agency that there is a problem. Edwards v. United States
Postal Service, EEOC Appeal No. 01933410 (October 13, 1994). See also
Dutton v. Johnson County Bd., 1995 WL 337588, 3 AD Cas. (BNA) 1614
(D. Kan. 1995)(it was a reasonable accommodation to permit an individual
with a disability to use unscheduled vacation time to cover absence for
migraine headaches, where that did not pose an undue hardship and employer
knew about the migraine headaches and the need for accommodation).
In the instant matter, neither the FAD, nor the supplemental investigative
report addressed the agency's reasonable accommodation efforts. Moreover,
the agency failed to show that permitting appellant to be absent or
restructure his vacation time would have posed an "undue hardship."
In view of the above considerations, we find that appellant was
discriminated against based on the agency's failure to reasonably
accommodate his physical and mental disabilities when he was removed and
not reinstated. Accordingly, the FAD is AFFIRMED with respect to its
finding of no discrimination based on reprisal. The FAD is REVERSED
with respect to its finding of no discrimination based on failure to
reasonably accommodate physical and mental disabilities, and the matter
is REMANDED to the agency to comply with the terms of the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall take corrective, curative and preventive action
to ensure that disability discrimination does not recur, including
but not limited to providing training to the responsible official(s)
at the Oakbrook, Illinois postal facility, in the law of employment
discrimination. Within thirty (30) calendar days of the date the
training is completed, the agency shall submit to the compliance officer
appropriate documentation evidencing completion of such training.
2. The agency shall reinstate appellant to the distribution clerk
position, or its equivalent, retroactive to the date when he was
discriminatorily removed.
3. The agency shall determine the appropriate amount of back pay
(with interest) and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at its Oakbrook, Illinois postal facility,
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501 (e)(1)(iii)), he or she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that a
civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED EIGHTY (180) CALENDARS 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. 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 (Z1092)
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:
Jan 5, 1999
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ____________ which found that
a violation of Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service, Oakbrook, Illinois, Post Office
(Oakbrook Post Office), supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The Oakbrook Post Office, has been found to have discriminated on
the basis of disability when the agency failed to grant a reasonable
accommodation to the known physical and mental disabilities of an
individual. The Oakbrook Post Office has been ordered to take corrective
action in the form of EEO training for the responsible official(s) and
reinstatement with back pay to the individual discriminated against.
The Oakbrook Post Office, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Oakbrook Post Office will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
Date Posted: _____________________ ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1This case was previously reviewed in a prior decision, Simandl v.
United States Postal Service, EEOC Appeal No. 01942894 (May 31, 1995).
In the prior decision, the Commission remanded the case to the agency
for a supplemental investigation. The relevant facts were extensively
set forth therein and will be repeated here to the extent necessary for
disposition.
2We note that appellant filed a civil action in this matter in the United
States District Court for the Northern District of Illinois (Court) on
February 20, 1996, three days before the Commission received the instant
Notice of Appeal and one day after he actually filed the appeal. In the
civil action, appellant sought to proceed in forma pauperis and to have
the Court appoint counsel to represent him on a pro bono publico basis.
In a Memorandum Order, dated February 26, 1996, the Court decided
that appellant did not meet the criteria to proceed without paying the
necessary court costs and providing for his own legal expenses. The Court
dismissed the action, without prejudice to appellant's right to move
for reinstatement of the complaint after paying the required filing fee.
The Commission has held that where the District Court dismisses a civil
action without prejudice and the merits of the complaint have not been
reviewed by an entity outside the agency, the administrative forum should
be reopened to appellant. See Quintero v. United States Postal Service,
EEOC Request No. 05920926 (January 7, 1993); Jones v. Department of
Health and Human Services, EEOC Request No. 05900469 (April 19, 1990).
3A footnote in the prior decision noted that appellant called in for
unscheduled absences twenty-two times between January 1, and April 29,
1991. Appellant was charged with AWOL due to "no call" on April 13,
15-17, 19, 20, 22-24, 26, 27, 29, 1991. Appellant accumulated 232 hours
(29 working days) of AWOL between January 1, and April 29, 1991.
4However, there is no indication as to when the agency became aware of
appellant's psychotic condition or episode.
5As a preliminary matter, we note that the agency failed to provide
information concerning its prior awareness of appellant's disabling
condition as directed by the prior decision. The supplemental
investigative report in its list of exhibits states only that information
regarding a prior EEO complaint, Agency No.4-L-0014-7, is no longer
available. No reason or explanation is given. Nevertheless, we find
that the supplemental record provides sufficient information to reach
a disposition.