01975550
02-25-2000
Daniel K. Ayers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel K. Ayers v. United States Postal Service
01975550
February 25, 2000
Daniel K. Ayers, )
Complainant, )
)
)
v. ) Appeal No. 01975550
) Agency No. 4J-460-1180-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
on the basis of his mental disability (depression) in violation of �
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq.<1> The appeal is accepted by the Commission in accordance with the
provisions of EEOC Order No. 960.001. For the reasons set forth below,
we AFFIRM the FAD.
ISSUE PRESENTED
The issue presented herein is whether complainant proved that he was
discriminated against, as referenced above, when on March 3, 1995, he
was suspended without pay, and was issued a notice of removal on April
5, 1995.
BACKGROUND
Complainant filed a formal complaint against the agency on July 10,
1995. Following an investigation, complainant was provided a copy of
the investigative file and notified of his right to request a hearing
before an EEOC Administrative Judge. Complainant did not request a
hearing; therefore, the agency issued a final decision, dated June 2,
1997, which found that he had not been discriminated against. It is
from this decision that complainant now appeals.
Prior to March 3, 1995, complainant was a City Letter Carrier at the
agency's Kokomo, Indiana Post Office. After agency officials received
several complaints concerning missing mail, complainant was determined
to be a suspect. On March 3, 1995, he was observed carrying several
items of mail into his home. Later that day, he was confronted by Postal
Inspectors and consented to a search of his home. Upon entering, the
Postal Inspectors not only recovered the items that were taken that
morning, but additional items that were previously taken. Complainant
was suspended and placed in a Leave Without Pay status. On April 5,
1995, he was issued a Notice of Proposed Removal. The effective date of
complainant's removal would have been May 10, 1995; however, he submitted
his resignation on May 5, 1995.
Complainant testified that, during the period of "early 1995 through March
3, 1995," he was suffering from severe depression. He argued that the
agency should not have a policy mandating that a person be automatically
removed, or forced to resign, in a situation such as his. Since he had
over 1500 hours of sick leave, complainant felt that he should have been
given a chance to seek medical assistance.
A-1, the Supervisor of Customer Service and complainant's immediate
supervisor, testified that he never requested any type of accommodation
or informed him that he had a disability. Also, A-1 stated that, to his
knowledge, no one has ever been retained at the Kokomo Post Office after
engaging in this type of conduct.
A-2, the Postmaster of the Kokomo Post Office, testified, among other
things, that at no time was he ever informed that complainant had a
mental disability. He also stated that, to the best of his knowledge,
there has never been an employee retained, at any Post Office, after
admitting that they had removed mail from "the mail stream."
The record contains a letter, dated January 31, 1996, written by
complainant's Psychologist, D-1. According to D-1, he provided therapy
to complainant from March 29, 1995 through May 1, 1995. Complainant,
he stated, presented symptoms of depression, such as a depressed mood,
a loss of appetite, concentration problems, fatigue, and problems with
sleeping. D-1 acknowledged that complainant's symptoms were probably
increased by the prospect of losing his job and the burden of coping
with his wife's mental illness. D-1 opined that:
[complainant] appears to suffer a long-term disorder characterized by
avoidance of close personal relationships and difficulty working in close
proximity to other people. Under stress, he would have little access
to the kinds of coping skills most people utilize in such situations,
such as seeking support from other people.
D-1 diagnosed complainant as having both an Adjustment Disorder with
a depressed mood and an Avoidant Personality Disorder. Finally, D-1
indicated that, on March 3, 1995, complainant's "[t]hinking and behavior
were most probably to some degree impaired due to the disorder[s] just
described in conjunction with the significant chronic stress of dealing
with his wife's mental illness."
ANALYSIS AND FINDINGS
To establish a prima facie case of disability discrimination, complainant
must show that: 1) he is an individual with a disability as defined
in 29 C.F.R. � 1630.2(g)<2>; 2) he is a "qualified" individual with
a disability as defined in 29 C.F.R. � 1630.2(m); and (3) there is a
nexus between his disability and the agency's adverse employment action.
See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
The threshold question is whether complainant is an individual with a
disability within the meaning of the regulations. An individual with
a disability is one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities;
2) has a history of such impairment; or 3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include
the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
We find that complainant failed to show that he has a mental impairment
which substantially limited one or more of his major life activities.
See Schultz v. United States Postal Service, EEOC Request No. 05950724
(September 26, 1996); Sanders v. Arneson Products Inc., 91 F.3d 1351,
1353 (9th Cir. 1996); See also The Interpretive Guidance on Title I of
The Americans With Disabilities Act, 29 C.F.R. � 1630.2(j). Although
he was diagnosed with Adjustment and Avoidant Personality Disorders,
D-1 noted that complainant's symptoms were probably increased by the
prospect of losing his job and the burden of coping with his wife's mental
illness. Furthermore, D-1 indicated that, on March 3, 1995, complainant's
"[t]hinking and behavior were most probably to some degree impaired."
This does not indicate a substantial limitation as required by our
regulations.
We also find that complainant failed to show that he has a record of
having a mental or physical impairment that substantially limits one or
more major life activities. A person has a record of a disability,
pursuant to 29 C.F.R. � 1630.2(k), when they have a hospital or
other record documenting a substantially limiting impairment or a
misclassification of such an impairment. See School Board of Nassau
County, Florida v. Arline, 480 U.S. 273 (1987); Mahoney v. Ortiz,
645 F. Supp. 22, 23-24 (S.D.N.Y. 1986). The focus is not merely on
whether the individual has a physiological disorder or condition, but
whether they have been classified (correctly or incorrectly) as having
an impairment that substantially limits one or more of their major
life activities. Thus, evidence that a person has been diagnosed as
having an impairment does not establish that the person has a record
of a disability. Complainant presented no evidence that he has ever
been classified (correctly or incorrectly) as having an impairment that
substantially limits one or more of his major life activities.
There is also no persuasive evidence that complainant was regarded by
management officials or co-workers as having a substantially limiting
condition, prior to March 3, 1995. The record indicates that complainant
first sought counseling on March 29, 1995, which was more than three
weeks after he was suspended and placed in a LWOP status. Furthermore,
A-1 and A-2 both testified that they had no indication that complainant
may have had a disability. Consequently, we find no evidence that would
support a finding that complainant has, has a record of, or was regarded
as having a mental impairment that substantially limits one or more of
his major life activities.<3>
Assuming, arguendo, that complainant's psychological impairments
were found to have been substantially limiting, and he was determined
to be a qualified individual with a disability, we would have found
that the agency's actions were not discriminatory. The Americans with
Disabilities 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.
The Commission's Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities, No. 915.002 (March 25, 1997) states
that "an employer may discipline an employee with a disability for
engaging in . . . misconduct if it would impose the same discipline on
an employee without a disability." Id. at 29. In the present case, the
agency suspended complainant and proposed his termination because of his
unauthorized possession of mail, which was removed from the mail stream.
The unrebutted testimony of A-1 and A-2 was that employees who engaged
in this type of misconduct have never been retained. This is clearly a
standard that is job-related and consistent with business necessity.
CONCLUSION
Accordingly, we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Feb. 25, 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:
_________________________
_________________________
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 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: WWW.EEOC.GOV.
3In reaching the above determination, we have examined complainant's
disability claim in light of the Supreme Court's recent decisions in
Sutton v. United Airlines, Inc., 527 U.S. ______, 119 S.Ct. 2139 (1999);
Murphy v. United Parcel Service, Inc., 527 U.S. _______, 119 S.Ct. 2133
(1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. ______, 119 S.Ct. 2162
(1999); Cleveland v. Policy Management Systems Corp., 526 U.S. ________,
119 S.Ct 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196
(1998).