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.