05970788
07-14-2000
Steven M. Schwatrz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steven M. Schwatrz v. United States Postal Service
05970788
July 14, 2000
Steven M. Schwatrz, )
Complainant, )
)
v. ) Request No. 05970788
) Appeal No. 01962167
William J. Henderson, ) Agency No. 1H-333-1039-94
Postmaster General, ) Hearing No. 150-95-8076X
United States Postal Service, )
Agency. )
______________________________________)
GRANT OF REQUEST FOR RECONSIDERATION
Complainant timely initiated a request for the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the
decision in Steven M. Schwartz v. United States Postal Service, EEOC
Appeal No. 01962167 (May 15, 1997). EEOC regulations provide that the
Commissioners may, in their discretion, reconsider any previous decision
where the party demonstrates that: (1) the previous decision involved
clearly erroneous interpretation of material fact or law; or (2) the
decision will have a substantial impact on the policies, practices,
or operation of the agency. 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified at 29 C.F.R. �1614.405(b)).<1> For the reasons set forth
below, complainant's request is GRANTED, and the final agency decision
is AFFIRMED.
ISSUES PRESENTED
The issues are: (1) whether the previous decision properly dismissed
complainant's appeal on account of complainant having filed a civil
action; and (2) whether the agency discriminated against complainant
based on sex (male) and mental disability (Anxiety Disorder) when his
request for a schedule change was not granted.
BACKGROUND
Complainant, then a Mail Processor, PS-4, filed a formal EEO complaint
alleging that the agency discriminated against him as delineated in part
(2) of the above-entitled statement �Issues 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 no sex or disability discrimination based on disparate treatment
theory, but finding disability discrimination insofar as the agency
failed to provide reasonable accommodation for complainant's disability.
The agency thereafter modified the finding in the RD and issued a FAD
finding no discrimination.
Complainant appealed the FAD to the Commission. An appeal was docketed,
but subsequently was dismissed after the agency submitted documentation
showing that complainant had filed a civil action in the U.S. District
Court for the Southern District of Florida, Docket No. 96-6206-CIV.
Based upon the documentation submitted by the agency, it appeared that the
civil action included the claims raised in the administrative complaint
at bar.
ANALYSIS and FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. �1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Dept. of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A request for reconsideration is not merely a
form of a second appeal. Regensberg v. U.S. Postal Service, EEOC Request
No. 05900850 (September 7, 1990). After a careful review of the record,
the Commission finds that complainant's request for reconsideration
meets the regulatory criterion of 29 C.F.R. �1614.405(b)(1), a clearly
erroneous interpretation of fact or law, in that a review of further
documentation pertaining to complainant's civil action reveals that
the civil action does not include the claims of sex and disability
discrimination at issue in the administrative complaint at bar.<3>
Accordingly, complainant's request for reconsideration is GRANTED.
Turning to the merits of complainant's complaint, the Commission notes
that the facts of the case are set out in full in the decision of the AJ,
which is incorporated by reference herein. Briefly stated, complainant
was verbally harassed on an ongoing basis by several coworkers on
account of his having filed a grievance<4> regarding overtime, which
caused the overtime available to these coworkers to be affected.
Thereafter, complainant sought treatment for a stress condition,
subsequently identified variously as �anxiety disorder� and �adjustment
disorder with anxious mood and obsessive-compulsive personality.� The
crux of complainant's complaint is that the agency denied his request
for a schedule change from Tour 3 (evenings) to Tour 2 (days), which
complainant claimed was necessary to accommodate his mental condition.
In her decision, the AJ found complainant to be substantially impaired
in the major life activities of �working� and �interacting with
others.� The AJ noted that complainant's physicians found that his
condition prevented him from working his bid assignment (that is, from
working on Tour 3) and from interacting with particular individuals.
Complainant's physicians said that complainant should only work on the
day tour and should be separated from coworkers who were harassing him.
With regard to why complainant needed to work days, one of his physicians
said that complainant needed to work days because of �phobic signs.�<5>
The AJ also found complainant to be �regarded as� disabled, noting that
the agency had sent him for a fitness for duty exam and then had kept him
out of work for 41 days, thereby regarding him as �mentally unstable.�<6>
The AJ's ultimate conclusions were as follows: The AJ found that
complainant was a �qualified individual with disability� entitled
to protection under the Rehabilitation Act; that complainant had not
established that the agency discriminated against him based on sex or
disability under the disparate treatment theory of discrimination, in
that he had not established that the agency treated him less favorably
than female or non-disabled employees with regard to his request for
a schedule change; that complainant had established that the agency
discriminated against him based on disability by failing to provide
reasonable accommodation for his disability, i.e., by not approving the
requested schedule change; and that the agency had not met its burden to
show that granting reasonable accommodation would be an undue hardship.
The Commission, however, finds that complainant is not an �individual
with disability,� qualified or otherwise, within the meaning of the
Rehabilitation Act, and therefore is not entitled to the Act's protection.
Whether an individual is substantially impaired in a major life activity
is measured according to that individual's ability to perform the subject
activity relative to the average person in the general population.
29 C.F.R. � 1630.2(j)(ii).<7> In this case, the record reflects that
complainant's ability to work is impaired only to the extent that he
cannot work the evening shift at the particular facility where he is
employed because his condition is aggravated by contact with a small
number of coworkers on that shift (one of whom, the record reflects,
transferred away from complainant's work area early on in these
proceedings). Further, complainant's ability to interact with others
is impaired only to the extent that he cannot interact with a small
number of coworkers on the evening shift. Neither of these conditions
amounts to a substantial impairment as compared to the average person
in the general population. See id; Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999) (inability to perform one job for one employer does
not constitute substantial impairment of ability to work).
The Commission further finds that the agency did not regard complainant
as disabled because it referred him for a fitness-for-duty examination
and placed him on administrative leave, two matters which themselves
are not at issue in this complaint. Certainly the agency may have been
concerned whether complainant was mentally unstable and therefore a
threat to the safety of himself and others, but �mentally unstable� does
not, of necessity, equal �mentally disabled.� The Commission therefore
concludes that, as a matter of law, complainant is not an �individual
with disability� within the meaning of the Rehabilitation Act, and
therefore is not entitled to the Act's protection.<8>
With regard to the AJ's finding that complainant did not establish his
claim of sex discrimination, the Commission finds that the AJ accurately
set forth the facts of the case and the law applicable to that claim.
The Commission therefore adopts that portion of the AJ's decision.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request meets the criteria of 29 C.F.R. �1614.405(b), and it is therefore
the decision of the Commission to GRANT complainant's request. For the
foregoing reasons, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency decision. Because the merits
of complainant's claim have been addressed herein for the first time,
the parties will be given reconsideration rights.
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:
July 14, 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
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 Commission's regulations 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, see note 1, supra, the decision of an
AJ is now binding upon both parties, subject to the right of appeal to
this Commission.
3The record reflects that the civil action in question contains two claims
of breach of contract (breach of the collective bargaining agreement and
failure to provide qualified Employee Assistance Program counselors)
and one claim of violation of the Privacy Act. These claims appear
related to, but are not identical with, the claims of discrimination
raised in the complaint at bar.
4There is no indication in the record that the grievance itself involved
allegations of discrimination.
5There is also an indication in the record that complainant was having
some difficulty sleeping and concentrating, but there is no information
regarding the extent to which such a condition may have existed.
6There are two versions of what, exactly, precipitated the
fitness-for-duty examination. According to the agency, in response to
teasing from his coworkers, complainant threatened to go get a gun and
come back shooting. According to complainant, what he actually said
was, would it take someone coming in with a gun to get a response from
management. It is not clear why complainant was kept out of work for
so long afterward, as he was cleared to return to duty by the referral
physician.
7The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.
8While this case does not present facts on which the Commission may
find unlawful discrimination, the Commission nonetheless notes, and is
disturbed by, the agency's apparent indifference to a situation where
one of its employees has been harassed by others for having exercised
his lawful rights; in this case, to file a grievance under the agency's
collective bargaining agreement.