Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.

Equal Employment Opportunity CommissionJan 5, 1999
01962857 (E.E.O.C. Jan. 5, 1999)

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.