01970171
03-25-1999
Dale Nehl, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Dale Nehl v. Department of the Army
01970171
March 25, 1999
Dale Nehl, )
Appellant, )
)
v. ) Appeal No. 01970171
) Agency No. F09501F0060
Louis Caldera, ) Hearing No. 170-95-8467X
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the Department of the Army
(agency), concerning his complaint alleging that the agency discriminated
against him in violation of �501 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 EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against him on the basis of his mental disability (Bipolar Disorder) when
he was terminated from his employment during his probationary period,
effective September 14, 1994, for performance and conduct problems.
Appellant also alleged that the agency failed to reasonably accommodate
his bipolar disability. Following the agency's investigation of his
complaint, appellant requested a hearing with an EEOC administrative
judge (AJ). A hearing was held on June 11, 1996. Subsequently, on
July 8, 1996, the AJ issued a recommended bench decision, finding no
discrimination. The agency subsequently adopted the AJ's recommended
decision in a final agency decision dated September 3, 1996.
After a careful review of the entire record, including the parties'
statements on appeal and arguments and evidence not specifically addressed
in this decision, the Commission finds that the AJ's recommended decision
properly analyzed appellant's complaint as both a disparate treatment
disability claim and a reasonable accommodation claim. The Commission
concludes that, in all material respects, the AJ accurately set forth the
facts giving rise to the complaint and the law applicable to the case.
We further find that the AJ correctly determined that appellant failed
to establish that he was a qualified person with a disability within the
meaning of the Rehabilitation Act. The AJ noted that appellant failed
to show that his mental impairment substantially limited one or more
of his major life activities. For instance appellant failed to show
that he was unable to come to work because of his mental condition or
that he disability limited his ability to fulfill his responsibilities.
Finally, the AJ also found that appellant did not present sufficient
evidence to show that the agency perceived him as having a disability.
Regarding appellant's disparate treatment claim, the Commission finds
that the agency rebutted any prima facie case appellant may have
established by articulating a legitimate, nondiscriminatory reason for
its terminating appellant. We note that appellant did not submit any
additional evidence on appeal in support of his claim. Therefore, we
discern no legal basis to reverse the AJ's finding of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
March 25, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations