01992937
08-31-2000
Guy Bouck, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Guy Bouck v. United States Postal Service
01992937
August 31, 2000
Guy Bouck, )
Complainant, )
)
v. ) Appeal No. 01992937
) Agency No. 4F-926-1173-95
William J. Henderson, ) Hearing No. 340-96-3702X
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. The appeal is accepted by the Commission in accordance with the
provisions of 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the agency discriminated against
complainant on the basis of disability (bipolar disorder, post-traumatic
stress disorder, depression, substance abuse, alcohol abuse) when his
request for reinstatement was denied.
BACKGROUND
In a complaint dated June 11, 1995, complainant, then a former City
Carrier, PS-5, alleged that the agency discriminated against him as
delineated in the above-entitled statement �Issue Presented.� The
agency conducted an investigation, provided complainant with a copy of
the investigative report, and advised complainant of his right to request
either a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision (FAD). Complainant requested a hearing. A hearing
was held, and thereafter, the AJ issued a recommended decision<2> (RD)
finding disability discrimination, received by the agency on November
27, 1998. On January 22, 1999, the agency rejected the finding in the
RD and issued a FAD finding no discrimination. It is from this decision
that complainant now appeals.
The facts of the case are fully set out in the AJ's decision, incorporated
by reference herein. A recapitulation of the facts follows: In
late 1992, complainant was diagnosed with bipolar disorder during a
period of hospitalization. At some point he was also diagnosed with
post-traumatic stress disorder and depression, although the timing of
the further diagnosis is not readily apparent. Complainant was also an
alcohol and substance abuser. In March 1993, the agency proposed to
remove complainant from employment on charges of irregular attendance
and absence without leave (AWOL). Complainant and the agency entered
into a �last chance� agreement (LCA) whereby the agency agreed to hold
complainant's removal in abeyance, provided complainant sought treatment
and counseling. One of the conditions of the LCA was that complainant
would substantiate any absence with medical documentation.
Complainant called in sick on September 9, 1993, informing his supervisor
that he was �feeling low� and he was afraid that if he were around the
coworkers he used to socialize with he would be tempted to lapse back
into alcohol use. Complainant returned to work on his next scheduled
day, September 13, 1993, without having obtained medical documentation
because, he testified, he thought it was more important to return to work
as quickly as possible; he did, however, indicate to his supervisor that
documentation would be forthcoming. The supervisor declined to wait
for the medical documentation, and immediately dated and submitted a
signed letter of resignation which complainant had previously provided.
Shortly thereafter, complainant submitted a note from his attending
physician, Dr. SJ, who stated that complainant had been unable to work
on September 9, 1993, on account of severe depression.<3>
Complainant appealed his removal to the MSPB, which in its initial
decision (ID) found that the agency's conduct had been �unreasonably
precipitous, arbitrary, and not in good faith,� and ordered complainant
to be temporarily reinstated pending the agency's petition for review.
During the period of interim relief (approximately eleven months),
complainant's work performance was satisfactory. On petition for review,
however, the MSPB reversed the ID, finding that complainant's resignation
had been voluntary, and complainant again was removed from employment.
Complainant immediately requested reinstatement. By letter dated February
1, 1995, the agency informed complainant that his request was denied by
the Manager, Human Resources.
In her decision, the AJ found complainant to be a �qualified individual
with disability� within the meaning of the Rehabilitation Act, and
therefore entitled to the Act's protection, by virtue of having bipolar
disorder, post-traumatic stress disorder, and depression, and being a
recovering alcoholic and substance abuser; being substantially impaired
in his ability to work, because his unmedicated conditions rendered him
unable to maintain regular attendance; but nonetheless being �qualified�
because once he had begun taking medication for his mental illness and
entered recovery from his alcohol and substance abuse, his attendance and
work performance were satisfactory for nearly a year prior to the denial
of his request for reinstatement. The AJ did not directly address the
existence of a prima facie case, but proceeded to examine the agency's
proffered explanation for its actions: that the HR Manager had never
reinstated any employee removed for cause, an explanation which was
uncontradicted.
The AJ, however, indicated that she found the agency's explanation suspect
for several reasons: the HR Manager did not consider complainant's
request in light of a specific provision of the agency's Employee and
Labor Relations Manual (ELM) stating that where alcohol and/or substance
abuse played a role in an employee's removal, a request for reinstatement
nonetheless should be given serious consideration; the HR Manager did
not review complainant's official personnel file prior to deciding not
to reinstate complainant; and the HR Manager refused to admit that he
was aware either that complainant's previous alcohol and substance abuse
may have played a role in his violation of the LCA, or that complainant
had any kind of mental disability, despite evidence of record that he
was aware of both situations. The AJ directed the agency, inter alia,
to retroactively reinstate complainant with back pay and benefits and
to determine complainant's entitlement, if any, to compensatory damages.
The agency rejected the AJ's findings, arguing as it had at the hearing
that complainant was removed for violation of the LCA, and so �for cause,�
and not because of his alcohol or substance abuse problems. The agency
did not address complainant's coverage under the Rehabilitation Act in
its FAD, although in its post-hearing brief it did argue that complainant
had not submitted evidence sufficient to establish that he is disabled.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
administrative judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.� Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
The Commission notes that the AJ determined complainant to be disabled
without reference to any mitigating measures. During the pendency of
these proceedings, however, the United States Supreme Court handed down
its ruling in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). In
Sutton, the Court held that whether an individual is �disabled� is to be
determined with reference to any mitigating measures. The record reflects
that complainant's mental illness is well-controlled with medication,
and does not reflect that the medication itself causes complainant to be
impaired in any way. Further, there is no evidence to support a finding
that complainant's status as a recovering alcohol and substance abuser
impairs any of his major life activities. The Commission nonetheless
finds that complainant is a �qualified individual with disability� because
he has a record of disability: undiagnosed and therefore unmedicated
bipolar disorder and post-traumatic stress disorder, and a history
of alcohol and substance abuse which were related to those conditions
according to Dr. EA, a second physician who treated complainant, and
which caused him to be substantially impaired in his ability to work in
that he was unable to maintain regular attendance. The Commission further
finds that complainant is a �qualified individual with disability,� given
that he was able to perform his job in a satisfactory manner for nearly
a year preceding the denial of his request for permanent reinstatement.
Having thus concluded that complainant, in fact, is a �qualified
individual with disability� entitled to protection under the
Rehabilitation Act, the Commission finds no basis upon which to disturb
the ultimate finding of the AJ, that the agency discriminated against
complainant on the basis of disability when his request for reinstatement
was denied.<4> Accordingly, the agency will be directed to provide
relief as set forth in the Order of the Commission, below.<5>
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the final agency decision.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
(1) The agency shall offer complainant retroactive reinstatement to his
previously held position, and shall afford complainant no fewer than
ten (10) business days to determine whether to accept reinstatement.
Should complainant decline the offer of reinstatement, his entitlement
to back pay and benefits shall cease as of the date on which the offer
is declined.
(2) The agency shall provide all Human Resources and other management
personnel in its Santa Ana, California, District who have authority
to recommend and/or approve reinstatement of former employees with EEO
training regarding their obligations under the Rehabilitation Act.
(3) The agency shall pay complainant's proven compensatory damages.
The agency shall afford complainant no fewer than forty-five (45) days
to submit evidence bearing on his entitlement to compensatory damages,
and shall determine the amount to which complainant is entitled within
thirty (30) days of receipt of complainant's evidence.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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 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 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.�
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Santa Ana, California, District
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
August 31, 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:
____________________ ____________________________________
Date Equal Opportunity Specialist
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation 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 that 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, Santa Ana District, supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, Santa Ana District, has been found to
have discriminated against the individual affected by the Commission's
finding. The United States Postal Service, Santa Ana District, shall
retroactively reinstate the affected individual, with back pay and
benefits; pay the affected individual's proven compensatory damages;
pay the affected individual's attorney fees and costs; and provide EEO
training for specified personnel. The United States Postal Service,
Santa Ana District, 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 United States Postal Service, Santa Ana District, 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
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 regulations of the Commission then in effect provided that the
decision of the AJ could be accepted, rejected, or modified by the agency.
Under the Commission's revised regulations, the decision of the AJ is
binding on both parties, subject to the right of appeal to the Commission.
See 64 Fed. Reg. 37,644, 37,657 (1999) (to be codified at 29 C.F.R. �
1614.110(a)).
3A copy of this note does not appear in the record; however, its
existence was documented during the litigation of complainant's
removal. See Guy A. Bouck v. United States Postal Service, MSPB Docket
No. SF-0752-94-0034-I-1 (February 8, 1994).
4With regard to the AJ not having specifically addressed the existence
of a prima facie case of discrimination, the Commission notes that it
is not necessary for the finder of fact to do so where the agency has
articulated a legitimate, non-discriminatory explanation for its actions.
See, e.g., Washington, v. Dept. of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
5Although, as noted by the AJ, complainant did not expressly request
compensatory damages during the proceedings below, on appeal complainant
has requested affirmance of the AJ's decision, which included an award
of proven compensatory damages. The Commission therefore construes
complainant's appeal as including a claim for compensatory damages, which
may be claimed for the first time on appeal. E.g., Banks v. Department
of the Interior, EEOC Request No. 05920680 (March 4, 1994).