01971683
01-15-1999
Billy D. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Billy D. Williams v. United States Postal Service
01971683
January 15, 1999
Billy D. Williams, ) Appeal No. 01971683
Appellant, ) Agency No. 1-G-753-1050-95
v. ) Hearing No. 310-96-5305X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
DECISION
Appellant timely initiated an appeal from a final agency decision
("FAD") concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted pursuant
to the provisions of EEOC Order No. 960.001.
The issue presented is whether appellant was discriminated against
based on his disabilities (acute left ankle impairment, stress and major
depression) and retaliation for prior EEO activity when he was issued
a Notice of Proposed Removal, which was upheld in April 1995.
Appellant was employed by the agency as a Custodian when he ceased
working in September 1992, due to his ankle injury. Thereafter, he
submitted documentation to the agency indicating that he had depression
and a stress disorder. Agency regulations provide that an "employee
may be separated if required to be absent for more than one year unless
there is cause to expect recovery and return within a reasonable time
after the end of one year in" leave without pay status. In August
1994, after being absent from work for nearly two years, appellant was
instructed to report for a psychiatric fitness-for-duty examination.
The psychiatrist examined appellant in November 1994, and concluded that
he was not fit for duty. In addition, by letter dated January 24, 1995,
appellant's own psychiatrist stated that he was totally incapacitated
and would not be fit for duty in his job or any other position in the
near future. Thereafter, appellant was given an opportunity to provide
documentation of his treatment, his approximate return to work date and
an opinion as to whether he would be a danger to postal management if he
returned to work. (In this regard, the record establishes that appellant
had previously reported auditory hallucinations which commanded him to
kill his supervisors and complained that his supervisors had planted
television cameras and bugs in his house to monitor him.) Appellant also
was advised of his right to apply for disability retirement. In March
1995, another psychiatrist reported that appellant was totally disabled
and getting progressively worse and that, while he was not currently
expressing any homicidal thoughts or plans, his behavior under stress
could not be predicted.
The agency then proposed appellant's removal on the basis that he: was
unable to perform his duties; was unable to maintain his schedule; and
posed a danger to himself and/or other postal employees. Appellant was
again advised of his right to seek disability retirement. Appellant's
removal became effective on April 29, 1995.
Appellant timely sought EEO counseling and filed his instant EEO
complaint, which the agency accepted and investigated. Thereafter,
appellant requested a hearing before an EEOC Administrative Judge
("AJ"). After a hearing, the AJ issued a recommended decision ("RD")
finding no discrimination. The AJ found that appellant was an individual
with a disability as defined by 29 C.F.R. �1614.203(a) based on both
his ankle impairment, which the AJ found substantially limited his
ability to walk, and his mental disabilities of depression and stress.
However, the AJ found that appellant was not a qualified individual
with a disability because there was no showing that appellant could
safely perform the essential functions of his position, with or without
reasonable accommodation. See 29 C.F.R. �1614.203(a)(6). While the AJ
found that the agency could accommodate appellant's ankle impairment,
the AJ found that all the medical evidence, including that of his
treating psychiatrist, established that appellant was unable to work at
the time of his removal, and would continue to be unable to work for the
foreseeable future. Accordingly, the AJ found that appellant could not
establish a prima facie case of discrimination based on his disabilities.
Noting that appellant had filed a previous EEO complaint in June 1993,
and attended a hearing on that complaint in August 1994, the AJ found
that he established a prima facie case of reprisal when he was requested
to take a fitness-for-duty examination in August 1994, followed by the
issuance of the Notice of Proposed Removal in March 1995. However,
the AJ found that appellant failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions were
a pretext for reprisal.
In this regard, the Commission notes that the AJ indicated that, in light
of appellant's record of homicidal hallucinations, she found that the
agency acted reasonably in raising a concern as to whether appellant
posed a direct threat to himself or others. However, the AJ found
that the principle basis for appellant's removal was his inability to
perform the essential functions of his position for the past two years
and the foreseeable future. Accordingly, the AJ found it unnecessary
to determine whether the agency properly determined that appellant,
in fact, posed a direct threat to himself or others.
In its FAD, the agency adopted the RD. Appellant timely appeals, but
offers no argument.
After a careful review of the record, the Commission finds that the RD
adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the AJ's finding that appellant failed to establish discrimination
or reprisal. Therefore, it is the decision of the Commission to AFFIRM
the FAD.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations