Daniel K. Ayers, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 25, 2000
01975550 (E.E.O.C. Feb. 25, 2000)

01975550

02-25-2000

Daniel K. Ayers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Daniel K. Ayers v. United States Postal Service

01975550

February 25, 2000

Daniel K. Ayers, )

Complainant, )

)

)

v. ) Appeal No. 01975550

) Agency No. 4J-460-1180-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning his allegation that the agency discriminated against him

on the basis of his mental disability (depression) in violation of �

501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et

seq.<1> The appeal is accepted by the Commission in accordance with the

provisions of EEOC Order No. 960.001. For the reasons set forth below,

we AFFIRM the FAD.

ISSUE PRESENTED

The issue presented herein is whether complainant proved that he was

discriminated against, as referenced above, when on March 3, 1995, he

was suspended without pay, and was issued a notice of removal on April

5, 1995.

BACKGROUND

Complainant filed a formal complaint against the agency on July 10,

1995. Following an investigation, complainant was provided a copy of

the investigative file and notified of his right to request a hearing

before an EEOC Administrative Judge. Complainant did not request a

hearing; therefore, the agency issued a final decision, dated June 2,

1997, which found that he had not been discriminated against. It is

from this decision that complainant now appeals.

Prior to March 3, 1995, complainant was a City Letter Carrier at the

agency's Kokomo, Indiana Post Office. After agency officials received

several complaints concerning missing mail, complainant was determined

to be a suspect. On March 3, 1995, he was observed carrying several

items of mail into his home. Later that day, he was confronted by Postal

Inspectors and consented to a search of his home. Upon entering, the

Postal Inspectors not only recovered the items that were taken that

morning, but additional items that were previously taken. Complainant

was suspended and placed in a Leave Without Pay status. On April 5,

1995, he was issued a Notice of Proposed Removal. The effective date of

complainant's removal would have been May 10, 1995; however, he submitted

his resignation on May 5, 1995.

Complainant testified that, during the period of "early 1995 through March

3, 1995," he was suffering from severe depression. He argued that the

agency should not have a policy mandating that a person be automatically

removed, or forced to resign, in a situation such as his. Since he had

over 1500 hours of sick leave, complainant felt that he should have been

given a chance to seek medical assistance.

A-1, the Supervisor of Customer Service and complainant's immediate

supervisor, testified that he never requested any type of accommodation

or informed him that he had a disability. Also, A-1 stated that, to his

knowledge, no one has ever been retained at the Kokomo Post Office after

engaging in this type of conduct.

A-2, the Postmaster of the Kokomo Post Office, testified, among other

things, that at no time was he ever informed that complainant had a

mental disability. He also stated that, to the best of his knowledge,

there has never been an employee retained, at any Post Office, after

admitting that they had removed mail from "the mail stream."

The record contains a letter, dated January 31, 1996, written by

complainant's Psychologist, D-1. According to D-1, he provided therapy

to complainant from March 29, 1995 through May 1, 1995. Complainant,

he stated, presented symptoms of depression, such as a depressed mood,

a loss of appetite, concentration problems, fatigue, and problems with

sleeping. D-1 acknowledged that complainant's symptoms were probably

increased by the prospect of losing his job and the burden of coping

with his wife's mental illness. D-1 opined that:

[complainant] appears to suffer a long-term disorder characterized by

avoidance of close personal relationships and difficulty working in close

proximity to other people. Under stress, he would have little access

to the kinds of coping skills most people utilize in such situations,

such as seeking support from other people.

D-1 diagnosed complainant as having both an Adjustment Disorder with

a depressed mood and an Avoidant Personality Disorder. Finally, D-1

indicated that, on March 3, 1995, complainant's "[t]hinking and behavior

were most probably to some degree impaired due to the disorder[s] just

described in conjunction with the significant chronic stress of dealing

with his wife's mental illness."

ANALYSIS AND FINDINGS

To establish a prima facie case of disability discrimination, complainant

must show that: 1) he is an individual with a disability as defined

in 29 C.F.R. � 1630.2(g)<2>; 2) he is a "qualified" individual with

a disability as defined in 29 C.F.R. � 1630.2(m); and (3) there is a

nexus between his disability and the agency's adverse employment action.

See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).

The threshold question is whether complainant is an individual with a

disability within the meaning of the regulations. An individual with

a disability is 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. 29 C.F.R. � 1630.2(g). Major life activities include

the functions of caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. � 1630.2(i).

An impairment is substantially limiting when it prevents an individual

from performing a major life activity or when it significantly restricts

the condition, manner or duration under which an individual can perform

a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability

to perform the major life activity must be restricted as compared to

the ability of the average person in the general population to perform

the activity. Id.

We find that complainant failed to show that he has a mental impairment

which substantially limited one or more of his major life activities.

See Schultz v. United States Postal Service, EEOC Request No. 05950724

(September 26, 1996); Sanders v. Arneson Products Inc., 91 F.3d 1351,

1353 (9th Cir. 1996); See also The Interpretive Guidance on Title I of

The Americans With Disabilities Act, 29 C.F.R. � 1630.2(j). Although

he was diagnosed with Adjustment and Avoidant Personality Disorders,

D-1 noted that complainant's symptoms were probably increased by the

prospect of losing his job and the burden of coping with his wife's mental

illness. Furthermore, D-1 indicated that, on March 3, 1995, complainant's

"[t]hinking and behavior were most probably to some degree impaired."

This does not indicate a substantial limitation as required by our

regulations.

We also find that complainant failed to show that he has a record of

having a mental or physical impairment that substantially limits one or

more major life activities. A person has a record of a disability,

pursuant to 29 C.F.R. � 1630.2(k), when they have a hospital or

other record documenting a substantially limiting impairment or a

misclassification of such an impairment. See School Board of Nassau

County, Florida v. Arline, 480 U.S. 273 (1987); Mahoney v. Ortiz,

645 F. Supp. 22, 23-24 (S.D.N.Y. 1986). The focus is not merely on

whether the individual has a physiological disorder or condition, but

whether they have been classified (correctly or incorrectly) as having

an impairment that substantially limits one or more of their major

life activities. Thus, evidence that a person has been diagnosed as

having an impairment does not establish that the person has a record

of a disability. Complainant presented no evidence that he has ever

been classified (correctly or incorrectly) as having an impairment that

substantially limits one or more of his major life activities.

There is also no persuasive evidence that complainant was regarded by

management officials or co-workers as having a substantially limiting

condition, prior to March 3, 1995. The record indicates that complainant

first sought counseling on March 29, 1995, which was more than three

weeks after he was suspended and placed in a LWOP status. Furthermore,

A-1 and A-2 both testified that they had no indication that complainant

may have had a disability. Consequently, we find no evidence that would

support a finding that complainant has, has a record of, or was regarded

as having a mental impairment that substantially limits one or more of

his major life activities.<3>

Assuming, arguendo, that complainant's psychological impairments

were found to have been substantially limiting, and he was determined

to be a qualified individual with a disability, we would have found

that the agency's actions were not discriminatory. The Americans with

Disabilities Act does not preclude an agency from enforcing standards

of conduct, as long as such standards are job-related, consistent

with business necessity, and enforced uniformly among all employees.

The Commission's Enforcement Guidance on the Americans with Disabilities

Act and Psychiatric Disabilities, No. 915.002 (March 25, 1997) states

that "an employer may discipline an employee with a disability for

engaging in . . . misconduct if it would impose the same discipline on

an employee without a disability." Id. at 29. In the present case, the

agency suspended complainant and proposed his termination because of his

unauthorized possession of mail, which was removed from the mail stream.

The unrebutted testimony of A-1 and A-2 was that employees who engaged

in this type of misconduct have never been retained. This is clearly a

standard that is job-related and consistent with business necessity.

CONCLUSION

Accordingly, we AFFIRM the agency's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

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

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. 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 (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:

Feb. 25, 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.

2The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.

3In reaching the above determination, we have examined complainant's

disability claim in light of the Supreme Court's recent decisions in

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); Cleveland v. Policy Management Systems Corp., 526 U.S. ________,

119 S.Ct 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196

(1998).