01970604
09-02-1999
Jimmie L. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Great Lakes/Mid-West Area Agency.
Jimmie L. Williams, )
Appellant, )
) Appeal No. 01970604
v. ) Agency No. 1J-607-1138-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Great Lakes/Mid-West Area )
Agency. )
)
)
DECISION
Appellant filed a timely appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on
the basis of mental disability (nervous condition) in violation of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Appellant alleges he was discriminated against when: he was not allowed
to return to work from disability retirement. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was
formerly employed as a mailhandler, at the agency's Chicago Processing &
Distribution Center. Appellant alleged that he returned to his worksite
after being on disability retirement and even though he had been released
by his doctor to return to work, he was not allowed to begin working.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on August 9, 1995. At
the conclusion of the investigation, appellant requested that the agency
issue a final agency decision.
The agency decided that the preponderance of the evidence supported its
conclusion that appellant could not return to work until he had received
a release from the Office of Personnel Management from his disability
retirement status. It further concluded that the appellant failed to
establish that the agency's reasons for its actions were a pretext for
discrimination.
On appeal, appellant contends that the agency's actions were
discriminatory because even though he had been released by Dr. Mundt, the
appellant's psychologist, as able to work, he is perceived as disabled
by the agency and has been prevented from returning to his position.
He contends that the agency's reasons are not legitimate because it
admitted that its reasons are based on his disability and whether he is
capable of doing the work.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Prewitt v. United States Postal Service, 662 F.2d
292 (5th Cir. 1981) and the applicable regulations, the Commission finds
that appellant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. As a jurisdictional matter, we note that the record has
little information regarding the appellant's mental condition, except that
he suffered from a "nervous condition" which because of the medication he
took for it, limited his ability to stand or lift for prolonged periods.
There is no medical opinion in the record about the nature of the
condition, or how his condition, in its unmitigated state, limited a
major life activity. We are willing to accept however, that based on
the appellant's disability retirement determination by the U.S. Office
of Personnel Management, he had a mental impairment that substantially
if not totally limited his ability to work. See 29 C.F.R.�1614.203
(1)(i); EEOC Compliance Manual Vol.2 Section 902 at p. 18.<1>
Without a qualified medical opinion that he no longer had this impairment
at the time of his return to work, we assume that he still did although
his ability to work had changed. At the time of his attempted return
to work, he had the opinion of two doctors, his own psychologist
and the agency's physician, that he was capable of performing the
essential functions of his job as a mailhandler. Therefore, he was a
qualified individual with a disablility for purposes of applying the
Rehabilitation Act. 29 C.F.R.�1614.203(a)(6).
Where the appellant fails is in establishing either that the agency
treated someone outside of his protected group more favorably, or that
the agency's reason for not allowing him to return was not legitimate.
Here, the agency upon learning that the appellant was still receiving
disability retirement, declined to re-employ him unless he had been
released by OPM. We are not persuaded, without more, that this is
a pretext for discrimination. Therefore, after a careful review of
the record, including appellant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
9/2/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations1Under civil service
disability retirement law, an employee "shall be
considered to be disabled only if the employee is
found by the Office of Personnel Management to be
unable because of disease or injury, to render
useful and efficient service in the employee's
position and is not qualified for reassignment".
5 U.S.C.A.�8337(a).