Cheryl New, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 18, 2000
05960497 (E.E.O.C. Jan. 18, 2000)

05960497

01-18-2000

Cheryl New, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Cheryl New v. United States Postal Service

05960497

January 18, 2000

Cheryl New, )

Complainant, )

) Request No. 05960497

v. ) Appeal No. 01943836

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On May 1, 1996, Cheryl New (hereinafter referred to as complainant) timely

initiated a request to the Equal Employment Opportunity Commission

(Commission) to reconsider the decision in Cheryl New v. Marvin

T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC

Appeal No. 01943836 (April 1, 1996).<1> EEOC Regulations provide that

the Commissioners may, in their discretion, reconsider any previous

decision where the party demonstrates that: (1). the previous decision

involved a clearly erroneous interpretation of material fact or law;

or (2). the decision will have a substantial impact on the policies,

practices, or operation of the agency. 64 Fed.Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.405(b)).

For the reasons set forth herein, complainant's request is granted.

ISSUE PRESENTED

The issue presented herein is whether complainant proved, by a

preponderance of the evidence, that she was discriminated against on the

bases of her sex (female), age (44), and disability (manic depressive)

when she was terminated in August 1992.

BACKGROUND

The previous decision accurately set forth the facts in this case,

and, accordingly, they will be included herein only in pertinent part.

The record in this case reveals that complainant filed a formal EEO

complaint in October 1992, raising the above-referenced allegation.<2>

The agency accepted complainant's complaint for processing, and conducted

an investigation with regard to the matter alleged. Complainant began

working for the agency as a Letter Carrier in 1974, and was diagnosed with

manic depression in either 1990 or 1991. Complainant's first and second

level supervisors were aware that she took medication for her condition.

Upon her arrival at work on July 6, 1992, complainant requested leave

from both her supervisor and another supervisor, stating that she was

not feeling well and was depressed.<3> Complainant testified that she

advised both supervisors that she did not think she should deliver mail

because she was "in a terrible frame of mind." (Hearing Transcript

p. 48). Neither of the supervisors responded to complainant's request

for leave. Complainant testified that, in addition to feeling ill, she

was experiencing stress on the date in question due to a recent automobile

accident, and that, therefore, her medication was out of balance.

The Station Manager testified that, on the date in question, he was

advised that the Postal Inspection Service received a call from the

local police department regarding a female Carrier who was acting

irrationally in an area within complainant's route. In addition,

the Station Manager was notified of a complaint from a customer

regarding a comment complainant made concerning the customer's illness.

Another Carrier (Carrier 1) was sent to bring complainant back to the

facility. As she was later leaving the facility, complainant encountered

another employee (Carrier 2) in the parking lot. Carrier 2 stated

that complainant was acting out of control and attempted to hit him.

Carrier 2 indicated that he later observed complainant cursing at

and making physical contact with one individual, and yelling at two

other people walking down the street.<4> Complainant testified that

she was experiencing a manic episode at the time, and did not recall

much of the incidents. Complainant was subsequently terminated from

employment for unacceptable conduct. The Notice of Removal cited prior

disciplinary actions for irregular attendance and unacceptable conduct.

The later actions included three suspensions for using profanity while

delivering her route and with the Station Manager.

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ), which was held in November

1993. The AJ issued a recommended decision on March 14, 1994, finding

that complainant had not been subjected to sex and age discrimination.

The AJ determined, however, that complainant was discriminated against

based upon her disability when the agency failed to provide her with

reasonable accommodation. Specifically, the AJ stated that the agency

failed to grant complainant's request for leave on the morning of July

6, 1992. The AJ noted that the actions underlying complainant's removal

would not have occurred absent the agency's denial of accommodation.

In its final decision dated May 16, 1994, the agency rejected the AJ's

finding of disability discrimination, stating that complainant failed

to prove that she was discriminated against with regard to any of the

cited bases.

The previous decision affirmed the final agency decision. The previous

decision initially found that complainant failed to establish a prima

facie case of age or sex discrimination. The previous decision further

determined that complainant did not show that she was a qualified

disabled individual at the time of her termination. Specifically, the

previous decision concluded that complainant failed to show that she

could perform the essential functions of her position without endangering

herself or others.

In her request for reconsideration, complainant asserted that she was

not allowed to address the prior disciplinary actions at the hearing.

In addition, complainant stated that the agency made no effort to

communicate with her or her doctors regarding accommodation for her

condition. Complainant noted that both of the officials who concurred

with the disciplinary action stated they were not aware of complainant's

disability.

In response to complainant's request, the agency stated that the request

did not meet the Commission's criteria for reconsideration.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument which tends to establish that at least one of the

criteria of 29 C.F.R. �1614.405(b) is met. In order for a case to be

reconsidered, the request must contain specific information which meets

the requirements of this regulation. For the reasons set forth below,

the Commission grants complainant's request for reconsideration.

The Commission initially notes that while the previous decision and

the AJ found that complainant failed to establish a prima facie case

of sex and age discrimination because she did not show that she was

treated differently than similarly situated employees, complainant

must only present evidence which, if unrebutted, would support an

inference that the agency's actions resulted from discrimination.

See O'Connor v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996);

Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,

EEOC Notice No. 915.002, n. 4 (September 18, 1996). Nevertheless, an

independent review of the record reveals no rationale for overturning

the ultimate finding of no discrimination, given that complainant did

not present any other evidence of discrimination which would give rise

to such an inference.

With regard to complainant's allegation that she was denied reasonable

accommodation, the Commission agrees with the AJ that complainant was

subjected to discrimination. Complainant was diagnosed with bipolar

disorder in 1990 or 1991, and the Station Manager testified at the hearing

that he was aware of complainant's condition. Complainant testified that

she had also given her supervisor information regarding her condition.

The Supreme Court recently held that whether measures mitigate an

individual's impairment should be taken into account in determining if

the individual is disabled. Sutton v. United Airlines, Inc., 527 U.S.

, 119 S.Ct. 2139 (1999); Murphy v. United Parcel Service, Inc., 527 U.S.

, 119 S.Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S.

, 119 S.Ct. 2162 (1999). Complainant stated that, even though she

was taking her medication, stress, fatigue, and alcohol can impact

the effectiveness of her medication, and that if her medication becomes

ineffective, she experiences irrational behavior, paranoia, hyperactivity,

mood swings, and explosive verbal outbursts. In a March 1992 letter

from an agency nurse, it was noted that individuals with psychiatric

difficulties may act out when medication levels are below normal.

During the July 6, 1992 incident, even though complainant was taking

medication, she experienced a blackout and did not recall the details of

what occurred. Thus, we find that complainant's manic depression, even

in the medicated state, substantially limits her cognitive functioning.

As noted by the AJ, at the time complainant requested accommodation on

July 6, 1992, the agency's physician had concluded that, with proper

medication, complainant was fit for duty and could successfully perform

her job as a Carrier. Further, contrary to what is implied by the

previous decision, the AJ correctly determined that, while complainant

used loud and profane language on three occasions, she did not engage

in any physical conduct prior to the events of July 6. Complainant's

supervisor acknowledged that complainant requested leave on the date in

question, and the AJ found complainant's testimony concerning her request

to be credible. Further, complainant's supervisors were aware of her

condition at that time. The Station Manager, who admittedly was not aware

of complainant's leave request, stated that if complainant was not feeling

well, she should have told her supervisor and would then have been allowed

to go home. Complainant's supervisor, however, never responded to her

request for accommodation. Accordingly, the Commission finds that the

AJ properly determined that complainant was discriminated against based

upon her disability when she was denied accommodation on July 6, 1992.

The Commission further finds that the AJ correctly determined

that complainant was subjected to discrimination with regard to

her termination. The Notice of Removal charges complainant with

"unacceptable conduct/physical altercation" based upon her actions on

July 6, 1992. It is noted that the Commission's Enforcement Guidance

on the Americans with Disabilities Act and Psychiatric Disabilities,

EEOC Notice No. 915.002 (March 25, 1997), reiterated the long-standing

understanding applicable to both the Rehabilitation Act and the ADA that

an employer may discipline an employee with a disability for engaging in

violence or threats of violence if it would impose the same discipline

on an employee without a disability. See, also, Ferrell v. Department

of the Army, EEOC Petition No. 03960032 (April 9, 1997). Nevertheless,

we find that complainant's actions, which were more in the nature of

flailing her arms at others, do not rise to the level of violent conduct.

Further, as stated, complainant had not engaged in prior acts of violence.

Finally, while not excusing appellant's behavior, the supervisor's

inaction contributed to the July 6, 1992 incidents. Accordingly, the

Commission finds that the AJ properly determined that complainant was

discriminated against based upon her disability when she was removed

from employment in August 1992.

CONCLUSION

After a review of complainant's request for reconsideration, the

agency's response, the previous decision, and the entire record,

the Commission finds that complainant's request meets the criteria

of 29 C.F.R. �1614.405(b)(1), and it is therefore the decision of the

Commission to GRANT complainant's request. The decision in EEOC Appeal

No. 01943836 (April 1, 1996), and the final agency decision are REVERSED.

The agency shall comply with the provisions of the Order set forth below.

There is no further right of administrative appeal on a decision of the

Commission on this Request for Reconsideration.

ORDER

The agency is ORDERED to take the following remedial action:

1. The agency shall reinstate complainant to the position of Letter

Carrier effective August 31, 1992.

2. The agency shall determine the appropriate amount of backpay, interest,

and other benefits due complainant, pursuant to 29 C.F.R. �1614.501, no

later than sixty (60) calendar days after the date this decision becomes

final. The complainant shall cooperate in the agency's efforts to compute

the amount of backpay and benefits due, and shall provide all relevant

information requested by the agency. If there is a dispute regarding the

exact amount of backpay and/or benefits, the agency shall issue a check

to the complainant for the undisputed amount within sixty (60) calendar

days of the date the agency determines the amount it believes to be due.

The complainant 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."

3. The agency is to conduct training for all supervisory and managerial

personnel at the Parkside Station Post Office, San Francisco, California,

addressing these employees' responsibilities under equal employment

opportunity law. The training shall place special emphasis on the

appropriate response to requests for reasonable accommodation under the

Rehabilitation Act.

4. The agency shall conduct a supplemental investigation to determine

whether complainant is entitled to compensatory damages for the denial

of reasonable accommodation. During the investigation, the agency

shall allow complainant to present evidence in support of her claim for

damages.<5> Thereafter, the agency shall issue a final decision as to

complainant's compensatory damages claim. Complainant shall cooperate

with the agency. The supplemental investigation and issuance of the

final decision must be completed within sixty (60) calendar days of the

date this decision becomes final.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented, as well as a copy of

the final decision regarding compensatory damages.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Parkside Station Post Office,

San Francisco, California, 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 (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/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 (K1199)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant 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. ��1614.407 and 1614.408. 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 complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR 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. 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:

Jan 18, 2000

__________ ________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

1On 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.

2Complainant initially claimed that her termination was also the result

of reprisal; however, complainant withdrew reprisal as a basis for

discrimination at the hearing.

3Although neither supervisor testified at the hearing, complainant's

supervisor, in a memorandum dated July 10, 1992, confirmed that

complainant requested annual leave on July 6, and mentioned having to

resort to taking tranquilizers.

4While Carrier 2 initially indicated that complainant attacked all

three individuals, he testified that he only observed complainant hit

one person.

5The Commission's decision in Carle v. Department of the Navy, EEOC Appeal

No. 01922369 (January 5, 1993), describes in detail the type of evidence

which should be presented in support of a claim for compensatory damages.