Robert Gaertner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.Y. Metro and Northeast areas), Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01961862 (E.E.O.C. Aug. 2, 2000)

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)).