01961862
08-02-2000
Robert Gaertner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.Y. Metro and Northeast areas), Agency.
Robert Gaertner v. United States Postal Service
01961862
August 2, 2000
Robert Gaertner, )
Complainant, )
) Appeal Nos. 01961862
v. ) 01962238
) Agency Nos. 4-A-117-1025-94
William J. Henderson, ) 4-A-117-1103-95
Postmaster General, )
United States Postal Service, )
(N.Y. Metro and Northeast )
areas), )
Agency. )
______________________________)
DECISION
INTRODUCTION
Robert Gaertner's (complainant) representative timely appealed the final
decisions of the United States Postal Service (agency), dated November 20,
1995, which concluded he had not been discriminated against in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq.<1> The record shows that in July,
1995, complainant died and his representatives elected to continue
the processing of his EEO complaints which were filed on March 14,
1994, October 20, 1994, and March 20, 1995 (hereinafter Complaints
1, 2, and 3)<2>. Complainant had alleged that he was discriminated
against on the basis of his mental disability (bi-polar disorder) and
reprisal (prior EEO activity). The appeals are accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). Furthermore, the Commission hereby exercises its discretion
in consolidating complainant's complaints for processing in accordance
with 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.606).
ISSUES PRESENTED
Whether complainant was discriminated against on the basis of his
disability (bi-polar disorder) and in reprisal for his prior EEO activity
when:
(1) on December 1, 1993, he was assigned to the Bum Room in Central
Islip rather than being assigned to the Motor Vehicle Craft;
(2) the Bayshore, New York, Postmaster made discriminatory remarks about
his mental illness;
(3) on January 7, 1994, he was placed in an off-duty administrative
leave status;
(4) on September 17, 1994, his Motor Vehicle Operator assignment was
terminated and he was returned to the Bayshore, New York duty station;
(5) on September 20, 1994, the Bayshore, New York, Postmaster yelled at
him;
(6) on February 14, 1995, he was placed on emergency suspension;
(7) on April 18, 1995, he was issued a Notice of Removal (the Notice)
which became effective May 22, 1995.
BACKGROUND
Complainant's initial contact with an EEO Counselor occurred on December
1, 1993, and he filed complaints 1, 2, and 3 on the dates stated above.
Regarding complaints 1 and 2, which involved allegations 1-5, the agency
accepted the complaints and issued complainant a report of investigation.
Complainant then requested an EEOC hearing. However, on July 27, 1995,
the cases were returned to the agency because of complainant's death.
On October 24, 1995, complainant's representative notified the agency
that a final decision was requested. On November 20, 1995, the agency
issued the two FADs at issue herein, which found no discrimination.
Complainant's representative now appeals the FADS.
The record reveals the following:
Complainant had been employed with the agency since at least 1990.
In September 1990, he was issued a Notice of Removal (not at issue herein)
for assaulting a co-worker. This termination was subsequently revoked
and complainant was assigned to the Bayshore Post Office as a Full-Time
Regular Clerk. The various instances of alleged discrimination at
issue herein began on December 1, 1993 and culminated with complainant's
termination on April 18, 1995.
In or about June, 1993, complainant presented documentation and
advised the agency that he had been diagnosed with bi-polar disorder
and requested a reasonable accommodation. Complainant's physician
requested that complainant be taken off his current assignment (window
bid) for six months. Complainant preferred to be reassigned to the
Motor Vehicle Craft to fill the position of Motor Vehicle Operator.
The agency attempted to accommodate complainant's physician's request
under its light duty policy and had complainant work the window part time.
On June 25, 1993, complainant was conditionally approved to a detail as a
Motor Vehicle Operator at the Motor Vehicle Craft, Mid Island facility.
Prior to his detail, complainant was required to pass a New York State
(NYS) road test. By the time complainant had passed the NYS road test,
in or about November, 1993, the hiring for Motor Vehicle Operators
was completed and there were no further vacancies, at that time.
Complainant was advised that he would be notified when a Motor Vehicle
Operator position became available. In addition, in November, 1993,
complainant's physician requested that complainant's light duty be
extended for a period of one year. The agency attempted to accommodate
this request and kept complainant on light duty. Shortly thereafter,
the agency placed complainant in the Central Islip facility (Bum Room)
sorting bags.
While working in the Central Islip facility, complainant's supervisor
overheard a conversation between complainant and his union representative,
whereby he believed complainant threatened to kill the Bay Shore facility
Postmaster. In early January, 1994, the Postal Inspector began an
investigation of this allegation, as well as the complaints of numerous
employees at the Bay Shore facility who affirmed that complainant engaged
in constant threatening remarks and intimidation, which caused many
employees great fear. In March, 1994, complainant's physician requested
that the agency remove complainant from the Central Islip facility and
place him part time on the window or move him to transportation.
During the Postal Inspector's investigation, complainant was placed
in an administrative leave status, with pay, and charged with "making
threatening remarks about a Postmaster." Following an extensive
investigation, complainant was returned to duty. In approximately,
August, 1994, complainant was placed in a detail at the Western Nassau
facility as a Motor Vehicle Operator to determine his suitability as
a driver. Within a few weeks, on or about September 16, 1994, officials
at the Western Nassau facility requested that complainant's detail be
terminated due to an incident whereby complainant intimidated several
employees and threatened to go after an individual who complainant
previously physically assaulted. Accordingly, complainant returned to
his regular duty station at the Bay Shore facility.
On or about September 19, 1994, shortly after returning to the Bay Shore
facility, complainant threatened several co-workers because they provided
information to the Postal Inspector. The next day a co-worker requested
that his name be stricken from the Inspector's investigative report.
Thereafter, the Postmaster scheduled a meeting with complainant and his
union representative. During the meeting, the Postmaster became angered
and shouted at complainant for his behavior.
Thereafter, complainant continued in his regular duty position without
incident until early February, 1995. On February 7, 1995, DBCS Machine #1
malfunctioned due to a belt breakdown. Complainant's supervisor called
the Electronic Technician (ET) who discovered that one of the belts in
the machine was wrongly placed by an employee attempting to fix it.
Thereafter, S1 instructed the entire crew, including complainant, to
get technical assistance when a machine breaks down and not attempt to
fix it. On February 8, 1995, complainant was observed doing something
to the vibrator end sensor bracket on DBCS Machine #1. A short time
after complainant was seen doing this, it was reported that the bracket
was broken off. On February 11, 1995, complainant was again observed
feeding DBCS Machine #1 while it was making a loud noise. When the
ET attempted to fix it, he determined that the belts on the machine
were mis-routed.
On February 14, 1995, complainant was involved in a verbal altercation
with an acting supervisor (AS), wherein AS summoned complainant to return
to his work station and complainant gave AS a hard time and questioned
his authority. Complainant and AS started to yell and curse at each
other. At this point, the supervisor called complainant an "a__hole"
and complainant responded by stating "anytime off the clock brother."
Thereafter, AS attempted to contain the situation by walking away.
Complainant walked back to his work station without any further incident.
In addition to the verbal altercation, the DBCS Machine #1 broke down
again and it was determined that complainant mis-routed the belts.
Later during complainant's shift on February 14, 1995, he was placed
on Emergency Off-Duty Status for "threatening a postal supervisor and
damaging postal equipment." On April 18, 1995, he was issued a Notice
of Removal which became effective May 22, 1995.
ANALYSIS AND FINDINGS
Disability Discrimination
The agency argues that complainant failed to show that he was disabled
within the meaning of the Rehabilitation Act. Specifically, the
agency argues that complainant failed to present evidence that he was
substantially limited in a major life activity.
In order to establish a prima facie case of disability discrimination,
complainant must show that he is an individual with a disability as
defined in 29 C.F.R. � 1630.2(g),<3> that he is a "qualified" individual
with a disability as defined in 29 C.F.R. � 1630.2(m), and that the agency
took an adverse action against him. See Cansino v. Department of Army,
EEOC Request No. 05960674 (August 27, 1998).
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities,
(2) has a record of such an impairment, or, (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). Major life activities include
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). See
Fidurski v. Department of Health and Human Services, EEOC Request 05960027
(February 19, 1997) (major life activities also include thinking,
concentrating, and interacting with others.)
The record shows that complainant suffers from a mental impairment
(bi-polar disorder). While there is no testimonial or documentary
evidence which describes how this mental impairment affects complainant's
major life activities,<4> complainant's conduct toward his co-workers
and supervisors suggests that complainant was substantially limited in
the major life activity of interacting with others.<5> For purposes of
this analysis, we will assume, without deciding this issue on the record
before us, that complainant was an individual with a disability.
Even assuming complainant could show that he was disabled, in order to
qualify for protection under the Rehabilitation Act, the complainant
must also show that he was a "qualified person with a disability."
A qualified person with a disability is defined as one who, with or
without reasonable accommodation, can perform the essential functions
of the position in question. 29 C.F.R. � 1630.2(m).
While complainant met the pre-requisites for the Full-time Regular
Clerk position, the record also indicates that complainant engaged in
threatening conduct in the workplace. The record shows that as early
as 1990, complainant was disciplined for "assaulting a co-worker."
The record also shows that complainant engaged in repeated acts
of threatening behavior toward his co-workers, supervisors and the
Postmaster, beginning in January, 1994 and ending with complainant's
termination in April, 1995.
Courts and the Commission have held that "one who displays abusive
and threatening conduct toward coworkers is not an otherwise �qualified
individual.'" Palmer v. Circuit Court of Cook County, 905 F.Supp. 499, 508
(N.D. Ill. 1995). Similarly in Adams v. Alderson, 723 F.Supp. 1531, 1532
(D.D.C. 1989), aff'd, 1990 WL 45737 (D.C. Cir. 1990), the court stated
that "[o]ne who is unable to refrain from doing physical violence to the
person of a supervisor, no matter how unfair he believes the supervision
to be or how provocative its manner, is simply not otherwise qualified for
employment." See also Mazzarella v. U.S. Postal Service, 849 F. Supp. 89,
94 (D. Mass. 1994); Gordon v. Runyon, 3 A.D. Cas. (BNA) 284 (E.D. Pa.),
aff'd, 43 F.3d 1461 (3d Cir. 1994); Ferrell v. Army, EEOC Petition
No. 03960032 (April 9, 1997). Accordingly, given complainant's history
of threatening and abusive behavior in the workplace, we find that he has
failed to establish that he is a qualified person with a disability.
Even assuming, arguendo, that complainant could prove that he was
a qualified individual with a disability within the meaning of the
Rehabilitation Act, as stated more fully below, we find that he,
nevertheless, has failed to prove discrimination.
Complainant seemingly claims discrimination on the basis of disparate
treatment, and, with regard to several allegations, on the basis of the
agency's failure to accommodate his disability.
The Commission regulations require agencies to make reasonable
accommodation to the known physical and mental limitations of qualified
applicants or employees with disabilities unless the agency can
demonstrate that the accommodation would impose an undue hardship on
the operations of its program. 29 C.F.R. � 1614.203(c). As part of
establishing a case of disability discrimination, a complainant must
show plausible reasons to believe that his or her disability can be
accommodated. Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981).
The United States Supreme Court set forth the standard for the order and
allocation of proof in employment discrimination cases where disparate
treatment has been alleged. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981).
Under these standards, complainant has the initial burden of establishing
a prima facie case. If complainant successfully establishes a prima
facie case, the agency must articulate a legitimate, nondiscriminatory
reason for its employment decision. Complainant then has the ultimate
burden of demonstrating by a preponderance of the evidence, that the
legitimate, nondiscriminatory reason the agency articulated was not its
true reason but was merely a pretext for discrimination. This analytical
framework for the order and allocation of proof which originated in
cases brought under Title VII also applies to cases brought under the
Rehabilitation Act. See Prewitt v. United States Postal Service, 662
F.2d 292 (5th Cir. 1981).
Issue 1
i. Disparate Treatment
We find that complainant was not discriminated against when the
agency assigned him to the Bum Room on December 23, 1993, rather than
assigning him to a Motor Vehicle Craft position. Assuming, arguendo,
that complainant presented a prima facie case of disparate treatment,
after a careful review of the record, we find that the agency articulated
a legitimate, non-discriminatory reason for its employment decision.
The agency affirmed, inter alia, that by the time complainant passed
the NYS road test, there were no vacancies for driver positions. We also
find that complainant failed to present any specific probative evidence
indicating that the agency's proffered explanation for its employment
decision was not worthy of credence or that the employment decision was
motivated by his disability.
ii. Reasonable Accommodation
The Rehabilitation Act permits reassignment to a vacant position as a
form of reasonable accommodation. See Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act
No. 915.002 pg. 37 (March 1, 1999). However, the record indicates that
no vacancy in the Motor Vehicle Craft existed in or about December, 1993.
Before considering reassignment, employers should first consider those
accommodations that would enable an employee to remain in his current
position. Id. The record reflects that up until approximately, March,
1994, complainant's physician's sole request was that complainant's
window responsibilities be reduced as the heavy traffic of people placed
a tremendous amount of stress upon complainant. We find that under the
agency's light duty policy, management tried to accommodate this request
by agreeing to reduce complainant's window responsibilities. Complainant
worked four hours at the window and four hours doing other functions
that were part of another employee's bid job. Complainant's physician
found this accommodation acceptable. Thereafter, the agency attempted to
accommodate complainant's preference to be placed into a driver position.
However, by the time complainant passed the NYS road test no vacancies
existed. Accordingly, complainant was placed on light duty and, shortly
thereafter, placed in the Bum Room at the Central Islip facility where
he worked with few people in a less stressful environment.
While complainant preferred to work as a driver in the Motor Vehicle
Craft, we find that the agency reasonably accommodated complainant when
it removed complainant from his window duties. We note that there is
no evidence in the record indicating that the agency's accommodation
was not effective. While the agency is not required to provide an
employee with the perfect accommodation or the accommodation of choice,
we note that the agency, nevertheless, continued to consider reassigning
complainant to the Motor Vehicle Craft once a vacancy was announced.
See Ramona v. United States Postal Service, EEOC Request No. 05960052
(September 18, 1995).
Issues 2 and 5
Initially, we note that a remark or comment, unaccompanied by concrete
action, is not usually considered a direct and personal deprivation under
Title VII or the Rehabilitation Act and is not generally sufficient to
render an individual aggrieved.<6> Simon v. United States Postal Service,
EEOC Request No. 05900866 (October 3, 1990). The Commission has also held
that an employee was not aggrieved when his supervisor yelled at him for
talking to another employee. Fuller v. United States Postal Service,
EEOC Request No. 05910324 (May 2, 1991). Here, because complainant
alleged only a single incident of yelling, it is questionable whether
complainant was aggrieved by the allegations.
However, assuming that these allegations stated a valid claim, we find
that complainant failed to prove them. Regarding Issue 2, the Postmaster
testified that he never made the remark alleged and the record contains
no corroborating evidence that the remark was made. Regarding Issue 5,
the record indicates that the Postmaster reprimanded complainant because
he threatened and intimidated several witnesses who gave statements to
the Postal Inspector. We find that the Postmaster proffered a legitimate,
non-discriminatory reason for his conduct in yelling at complainant; that
he was frustrated by complainant's unacceptable conduct. In addition,
we also find that complainant did not proffer any specific probative
evidence indicating that the agency's explanations were not worthy of
credence or that the true reason for its conduct was based on disability
discrimination.
Issue 3
We find that complainant failed to prove that he was discriminated
against on the basis of his disability when, on January 7, 1994,
the agency placed him on administrative leave, with pay, for making
threatening remarks about the Postmaster. Assuming, arguendo, that
complainant made out a prima facie case of disability discrimination,
the agency articulated a legitimate, non-discriminatory reason for its
employment action. According to the agency, complainant was placed on
leave because of threatening remarks he made about the Postmaster, as
well as, his intimidating and threatening conduct toward his co-workers.
In addition, complainant has presented no specific probative evidence
which indicates that the agency's explanation was not worthy of credence
or that the agency acted with discriminatory motives. Moreover, it is
well-settled that the Rehabilitation 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. See Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, No. 915.002,
p. 47 (March 1, 1999); Hunter v. Air Force, EEOC Petition No. 03980060
(October 8, 1998).
Issue 4
Assuming that complainant established a prima facie case of disability
discrimination, we find that the agency articulated legitimate,
non-discriminatory reasons for ending complainant's detail in September,
1994. Specifically, the Manager, Transportation and Networks and the
Manager, Vehicle Operations both testified that shortly after complainant
began the detail, another employee complained about his (complainant's)
intimidating behavior. The officials also testified that complainant was
not qualified to operate a Tractor Trailer which was generally required
for employees hired on a permanent basis. We find that the evidence
does not prove that these reasons were pretextual.
Issues 6 and 7
i. Disparate Treatment
For purposes of argument, we will assume that complainant established
a prima facie case of disability discrimination based on disparate
treatment. We also find that the agency articulated legitimate,
nondiscriminatory reasons for complainant's suspension and removal.
Specifically, the agency placed complainant on emergency suspension
and officially removed him for conduct-related reasons: threatening
behavior and unauthorized tampering with and damage of agency equipment.
In addition, the agency stated in its Notice of Removal that the recent
incidents of misconduct were considered along with complainant's entire
history of threatening, harassing, and intimidating behavior towards
his co-workers and supervisors.
We find that complainant failed to prove pretext. Complainant submitted
no specific probative evidence, other than his own statements, that
his conduct was not as the agency described. Accordingly, since the
overwhelming weight of the evidence shows that complainant's statements
are not credible and that he has repeatedly engaged in threatening
behavior, we find that he has failed to prove pretext or discriminatory
animus.
ii. Reasonable Accommodation
While the Commission is cognizant of the psychiatric problems complainant
had, we find that complainant has failed to demonstrate what reasonable
accommodations would have enabled him to fulfill one of the requirements
of his position, the ability to interact with others without demonstrating
intimidating, harassing, or threatening behavior.
Assuming, arguendo, that the agency had a duty to accommodate complainant
by reassigning him to the Motor Vehicle Craft, the record shows that the
agency did reassign complainant to such position. However, within a short
period of time it became clear that complainant was unable to perform an
essential function of the position; the ability to work with people and
refrain from threatening, intimidating or harassing them. In addition,
it is doubtful that complainant would have been able to function in
another position in light of his proven behavioral problems. There is
substantial evidence that the agency tried to accommodate complainant on
more than one occasion but that his inability to interact with others made
such accommodations impossible. Accordingly, we find that the agency had
met its burden in attempting to accommodate complainant's disability.
See Roberson v. Department of the Army, EEOC Petition No. 03900079
(October 30, 1990) .
Reprisal Discrimination
The general analysis for disparate treatment cases which is described
above applies to cases of reprisal discrimination. However, in order to
establish a prima facie case of reprisal discrimination, the complainant
must prove that: (1) he participated in prior EEO activity; (2) the
responsible officials were aware of this activity; (3) following the
activity, an adverse action occurred; and (4) there is a causal link
between the protected activity and the adverse action.
Issues 1, 2, 3, and 5
Regarding Issue 1, complainant's assignment to the Bum Room, we find
that complainant failed to establish a prima facie case of reprisal
discrimination because he only contacted an EEO counselor after this
assignment. Concerning Issue 2, we also find that complainant failed to
establish an inference of reprisal discrimination. Even if the alleged
remarks were made, there is no record evidence tying it to complainant's
EEO contact on December 1, 1993. It is questionable whether complainant
established an inference of reprisal discrimination regarding Issue 3 as
there is evidence of numerous written complaints about complainant's
threatening and harassing behavior which, along with the incident on
February 14, 1995, apparently persuaded the agency to take the actions
it did. Regarding Issue 5, we find that complainant failed to establish
an inference of reprisal discrimination in that there is no evidence
that the incident, if it happened as alleged, was causally connected to
complainant's EEO activity.
Assuming, arguendo, that a prima facie case of reprisal discrimination
was established in each instance, as set forth above, we find that the
agency articulated legitimate, nondiscriminatory explanations for its
actions which complainant failed to prove were pretextual.
Issue 4
Assuming that an inference of reprisal discrimination was established, we
find that the agency articulated legitimate, nondiscriminatory reasons
for its action which complainant failed to prove were pretextual.
Complainant submitted no evidence that his prior EEO activity, rather
than his threatening and harassing conduct, served as the catalyst for
ending the detail. Moreover, the agency officials involved in terminating
the detail were apparently not the subject of complainant's prior EEO
allegations.
Issues 6 and 7
Assuming that complainant established an inference of reprisal
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions, which are discussed above. We find that
complainant failed to prove that these reasons were pretextual. The
record shows that complainant had a history of behavioral problems for
which he was disciplined in 1990, prior to ever filing an EEO complaint.
There is no evidence that complainant's prior EEO activity was the reason
for his placement on administrative leave and his subsequent suspension
rather than the agency's assessment of his conduct.
CONCLUSION
Therefore, for the reasons set forth above, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decisions finding that complainant was not discriminated against on the
basis of his disability and his prior EEO activity.
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 (S0400)
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:
August 2, 2000
Date Frances M. Hart, Executive Officer
Executive Secretariat
1 On 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.
2 Complaints 1 and 2 were consolidated under Agency No. 4-A-117-1025-94.
3 The 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. 1630 apply to complaints of
disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
4 The only description of complainant's condition, according to
complainant's physician, states as follows: "This condition typically
involves mood swings during which the individual can feel �up' or manic
and/or �down' or depressed. It is not unusual for a patient with this
condition to appear easily agitated and irritable particularly when
situations are frustrating them."
5 The record shows that complainant was unable to interact with others
without demonstrating intimidating, harassing, or threatening behavior.
We also note that in July, 1995, (three months after his termination)
complainant committed suicide.
6 However, we note that adverse actions need not qualify as �ultimate
employment actions� or materially affect the terms and conditions of
employment to constitute retaliation. Lindsey v. United States Postal
Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance
Manual, Volume II (May 20, 1998)).