01972586
06-21-1999
Thomas J. Verzeni, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (All./Mid-Atl. Region), Agency.
Thomas J. Verzeni, ) Appeal No. 01972586
Appellant, ) Agency No. 4C-170-1008-95
v. ) Hearing No. 170-95-8508X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(All./Mid-Atl. Region), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. See EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are whether appellant was subjected to discrimination
on the basis of a mental disability (paranoid disorder-persecutory
type) when the agency: (a) required him to undergo a psychiatric
fitness-for-duty examination in June 1994; (b) notified him that he
would be removed effective October 22, 1994; and (c) determined that
the applicable local union agreement did not grant him the right to see
a third physician.
BACKGROUND
Appellant joined the agency in 1985. In September 1992, while he was
employed as a Letter Carrier at the Dover, New Jersey, Post Office,
appellant complained that, between 1:00 a.m. and 3:00 a.m., people
were outside his house yelling, pounding on his door and threatening to
get him. Appellant stated that these people were using the names of
agency employees and that agency personnel should be concerned about
legal action he might take. Agency officials contacted the State
Police, who stated that they were familiar with appellant, because he
frequently contacted them to report acts of harassment and to request
their assistance. Because of appellant's statements, agency officials
instructed him to undergo a fitness-for-duty (�FFD�) examination.
After a 72-hour admission to a behavioral health center, appellant
was diagnosed as having a paranoid disorder-persecutory type, and he
was discharged with a clearance to return to his normal duties. In a
letter to the agency, the clinical director stated that as of that date,
appellant did not present an imminent danger to himself or others.<1>
In November 1992, the agency notified appellant that he would be
removed from duty for failure to be regular in attendance based on six
incidents of tardiness from September through October 1992, and his
prior disciplinary history, which included a Letter of Warning and two
suspensions which were issued for failure to be regular in attendance,
unscheduled absences or absences without leave. For reasons not set
forth in the record, appellant was not removed from duty and the record
does not indicate the ultimate disposition of these charges.
In December 1992, appellant was reassigned to the Clarks Summit Post
Office. On April 17, 1993, appellant informed a supervisor that he
could not carry his whole route that day because someone had shot a gun
outside his window the night before and he had to do something about it.
Appellant asked if he could case his route and carry a little, and
then obtain sick leave to see his physician. The next day, appellant
returned with a note from a physician reading: �Chest wall syndrome.
Diagnosis: Good.� However, after appellant discussed being terrorized
by his neighbors and apparently indicated that he wished to call
the State Police, his supervisor persuaded him to take annual leave
for the rest of the day. On April 18, 1993, appellant was admitted
to a Community Hospital on the recommendation of the State Police,
who indicated that they believed that he posed a threat to himself and
others under an applicable Mental Health Act. A police officer informed
agency officials that the police had been receiving constant calls from
appellant complaining about being harassed, but that the police had never
confirmed any of the incidents. The police officer opined that appellant
was: calling the police �to build a case so that he can justify shooting
somebody;� �a gun fanatic� whose application to carry a concealed weapon
had been denied; and going to be involved �in the next Postal Service
massacre.� Report of Investigation (�ROI�) Ex. I-7Az, p. 118.
The record reflects that the Community Hospital placed appellant on
anti-psychotic medications (apparently without his consent). On April 19,
1993, appellant called the Postmaster and requested her assistance in
securing his release from the facility. Appellant complained to the
Postmaster that he was being tranquilized and that he was the victim.
(Appellant later admitted �cheeking� his medications and ultimately
refused to take them.) When the Postmaster responded that the Postal
Service was not involved in appellant's placement in the facility,
he responded that the Postal Service may be involved because someone
had hit his car by the loading dock at the Dover Post Office (which,
he maintained, constituted a threat to kill him by inducing a heart
attack), and that postal officials denied that such an incident occurred.
Appellant also stated that he injured himself on April 16th, when
he jumped out of bed because of the yelling outside his house.
After appellant refused to voluntarily remain hospitalized, an
involuntary commitment hearing was held. While reference was made to
appellant's possession of handguns, appellant maintained that he would
not use a handgun against anyone unless his life was in direct danger.
A psychiatrist determined that sufficient grounds did not exist to prove
that appellant posed a clear and present danger to others, and the court
commitment was denied and appellant was discharged on April 23, 1993.
By letter dated April 23, 1993, the Postmaster notified appellant that
he was placed in non-duty status, effective April 26, 1993, based on his
�conduct both on and off duty on April 17, April 19, and April 23, 1993.�
(The record reflects only that appellant was discharged from the Community
Hospital on April 23, 1993, and it is unclear what other conduct, if any,
the agency maintained appellant engaged in on that date.) The Postmaster
informed appellant that he would be scheduled for a psychiatric FFD
examination in the near future and that the �results of this examination
will determine [his] employability.� ROI, Ex. I-7Ax, p. 120.
On April 29, 1993, appellant reported to the examination, as instructed
by the agency. The physician found appellant to be �alert, oriented
... coherent, no hallucinations, delusions as stated in medical history
(does not denote delusions of people following him at work or attacking
him there).� ROI, Ex. I-7s, p. 125. The physician further stated that
he had discussed appellant with the psychiatrist who examined appellant
in connection with the involuntary commitment hearing, and that this
psychiatrist believed appellant posed no imminent danger to himself or
others and was capable of returning to work. The physician concluded
that he found no physical reason for appellant not to return to work,
but suggested that if the agency �desires a psychiatric [FFD] examination,
[it] should have this done by a psychiatrist.� Id.
Appellant was returned to his position. In January 1994, the agency
issued him a Letter of Warning based on tardiness. In February 1994,
at his request, appellant transferred to the Allentown Post Office.
Officials in the Allentown Post Office learned of the foregoing incidents
involving appellant prior to his transfer, but were contractually
obligated to permit his transfer. Hearing Transcript (�HT�) at 104-105.
On June 9, 1994, the Manager of Customer Services (�Manager�) reported
having �a strange conversation with� appellant. The Postmaster
immediately interviewed appellant in the presence of the Manager
and the local union president. Appellant stated that: he was hearing
voices at his home at various times throughout the evening;<2> he was
being awakened at 2:38 am, 3:57 am and 4:44 am and related these times
to the caliber of weapons (as reflected in the emphasis added); voices
shout on a daily basis through the outside vent of his range hood and
windows of his home; the community water supply was spiked with �No-Doz�
in order to keep him awake all evening; someone had rammed his vehicle
at the loading dock while he was at the Dover Post Office, but postal
inspectors denied that this occurred; and his neighbors were trying to
scare him into vomiting while sleeping so that he will choke to death.
By letter dated June 11, 1994, the Postmaster related this incident to
a psychiatrist (�Psychiatrist A�) and noted that appellant had filed
numerous complaints with various law enforcement agencies regarding
alleged harassment, but that such agencies had found no evidence
supporting his allegations. The Postmaster informed Psychiatrist A that:
Because of this type of behavior, we are requesting a psychiatric
examination and your findings of [appellant's] suitability for continued
employment with the Postal Service.
As Postmaster, I am very concerned for this individual, and our
Postal employees and the community in general. This is not the first
incident of this type of behavior by [appellant]. In order to assist
you in your evaluation, please see attached information related to
prior incidents reported by the Clarks Summit Postmaster, and medical
assessments/evaluations by other physicians.
I truly believe if our employees or customers were aware of [appellant's]
behavior, they would feel in eminent [sic] danger which could cause
problems within our work environment.
By letter dated June 13, 1994, appellant was instructed that he was placed
on administrative leave until otherwise notified. Appellant was required
to take an FFD exam administered by Psychiatrist A, a board-certified
psychiatrist. In his report dated June 14, 1994, Psychiatrist A stated
that he �disagree[d] with the findings of previous physician examiners
[and felt that appellant] is suffering from an active psychosis and
that his fitness for duty is subject to several provisions� including
that appellant: (1) take a psychological test battery which included
specified tests; (2) be informed not to have a handgun in his possession;
and (3) undergo active psychiatric treatment with full compliance as to
medication and therapy. Psychiatrist A stated that appellant should not
be considered for a return to active duty absent compliance with provision
(3) and a release by a treating psychiatrist �after a suitable period
of therapy and medication.� Psychiatrist A opined that:
...[appellant] is suffering from an active paranoid delusional system
and as such is not able to distinguish reality from his delusions.
I believe, given sufficient provocation and his delusional belief in the
right to defend himself against �persecution,' that he might well act
in an inappropriate and impulsive way to �defend' himself with a gun.
As such, I believe that there is a real possibility that he may be of
danger to others.
Failing [appellant's] willingness to accept out patient treatment, I
believe there should be some serious consideration to be given to his
involuntary hospitalization.
By letter dated June 16, 1994, the Postmaster informed appellant that,
based on Psychiatrist A's report, he was found not to be fit for duty
until he received psychiatric treatment and was released to return to
duty. The Postmaster suggested that appellant request annual or sick
leave, or leave without pay, while undergoing treatment and offered to
assist in arranging such treatment.
Appellant arranged to be seen on several occasions and tested by a
provider of his choosing (Psychologist B). By letter dated August
1, 1994, Psychologist B submitted a psychological evaluation to the
agency, noting that he had explained to appellant that the report was
not favorable. In that report, Psychologist B reviewed appellant's
history and opined that while he denied hallucinating, he was actively
hallucinating on at least an auditory level and had a deeply ingrained
delusional system centering primarily around persecutory material.
While Psychologist B found no evidence of any suicidal or homicidal
ideation, he noted that appellant spoke about defending himself
against threats of harm and would not accept the possibility that he
had a delusional system operating. While appellant denied intending
to harm anyone, Psychologist B found that he presented a high risk
for acting out inappropriately on an aggressive level, as he was
frightened and scared and had no insights into what was happening
to him. Psychologist B concluded that appellant �is reaching out to
the police to help him but if this should fail he may act on his own
behalf.� Psychologist B advised that appellant seek out professional
mental health treatment before he be considered for a return to duty,
with a combination of psychotherapy and pharmacotherapy. Psychologist B
concurred in Psychiatrist A's recommendation that appellant's return to
work be subject to a release from a treating mental health professional,
finding this to be a reasonable stipulation. ROI, Ex. I-7p-z.
Meanwhile, appellant approached two of his coworkers and sought their
assistance in witnessing or otherwise corroborating his contention
that other postal workers (including some from his prior workplaces
in Dover and Clarks Summit) were outside his house, harassing him.
Appellant stated that he meant these other postal workers no harm,
but wanted them to admit their actions or otherwise establish their
presence so that he would be believed by Psychiatrist B. In their written
statements describing their separate encounters with appellant, neither
coworker expressed any fear or anxiety. By letter dated August 10, 1994,
the Postmaster advised appellant not to approach individual employees in
the performance of their duties. In addition, the Postmaster notified
appellant that he was prohibited from entering Postal premises without
receiving the Postmaster's advance permission. ROI, Ex. I-6m.
By letter dated August 22, 1994, the Postmaster advised appellant that,
based on the reports issued by Psychiatrist A and Psychologist B, he
had the following options: (1) agree to treatment by a psychiatrist
in a combination of psychotherapy and pharmacotherapy; (2) apply for
disability retirement; or (3) resign. By letter dated September 16,
1994, appellant was notified that he would be removed from employment
effective October 22, 1994, for failure to meet the requirements of his
position inasmuch as he had failed to elect to pursue any of the three
options set forth in the letter dated August 22, 1994.
Appellant filed a grievance challenging his removal. A meeting
concerning the grievance/arbitration procedure was held on March 14, 1995.
At the meeting, appellant requested a third medical opinion regarding his
fitness for duty. However, the Postmaster concluded that appellant was
not contractually entitled to another medical opinion under the applicable
local union agreement, and denied his request. The Postmaster advised
appellant that while his current status was �termination,� he would
remain on the rolls in a non-pay status until the matter was resolved
through the grievance/arbitration process.
By January 1995, appellant began a course of psychiatric treatment
with Psychiatrist C, who was not board certified. She believed that
appellant did not have schizophrenia, but had paranoia and obsessive
compulsive tendencies, which were worsening due to the stress of not
working. In April 1995, she prescribed medication to reduce his stress
and anxiety, advising appellant that it was so imperative that he take
the anti-psychotic medication, that she would no longer see him if he
refused to do so. Appellant, however, continued to refuse medication.
Nonetheless, Psychiatrist C found that, by May 1995, appellant presented
such a marked reduction in his anxiety, paranoia and stress levels that
antipsychotic medication was no longer recommended. This reduction in
anxiety apparently was attributed to appellant's successful prosecution
of a neighbor, whom appellant had charged with harassing him at home and
throwing a stone at his house. Psychiatrist C continued to see appellant
once a month through August 1995, and every few months thereafter. In the
Summer of 1995, appellant obtained a position as a long-distance truck
driver. While Psychiatrist C opined that appellant still had obsessive,
compulsive and paranoid personality features, she found that he was able
to function normally and no longer presented delusional thinking.
When agency officials consulted with Psychiatrist A regarding Psychiatrist
C's diagnostic change from April 1995, Psychiatrist A responded that he
was completely baffled by her sudden change of opinion as to the need
for medication, particularly as appellant could not have undergone any
significant psychotherapy in such a short time and had not taken any
anti-psychotic medication. Psychiatrist A stood by his diagnosis that
appellant needed ongoing therapy and anti-psychotic medication before
he could be deemed fit to work.
In January 1996, an arbitrator ruled that appellant:
should be reinstated after undergoing treatment with a board certified
psychiatrist and following such psychiatrist's recommendations including,
if necessary, the use of medication. His return shall be dependent upon
the judgment of his treating psychiatrist that he is able to return to
work; that he pass a fitness-for-duty examination and, that he continue
under the care of his psychiatrist for at least two years after he returns
to work or as long as such psychiatrist deems [he] should remain under
his care. {Appellant's] return to work shall be without any backpay or
benefits but with his seniority unimpaired.
Appellant met with Psychiatrist A on February 27, 1995. In a letter to
the agency dated March 3, 1995, Psychiatrist A stated that he continued
to believe that any offer to return him to work should require appellant
to get rid of the guns, to engage in meaningful therapy and to accept
medication. By letter dated March 5, 1996, the agency informed appellant
that he had not timely arranged to satisfy the arbitrator's conditions
to reinstatement, and that he was, therefore, removed from the agency's
rolls effective March 5, 1996.
Meanwhile, appellant had sought EEO counseling in November 1994,
and filed a formal EEO complaint in March 1995, alleging that he had
been subjected to discrimination based on a perceived mental disability
(paranoia) when he was deemed not fit for duty on October 22, 1994, issued
a notice of removal on November 3, 1994, and denied a request for a third
party medical opinion on March 14, 1995. After the agency accepted
and investigated the complaint, appellant timely requested a hearing
before an EEOC Administrative Judge ("AJ"). Following the hearing ,
the AJ issued a recommended decision ("RD") finding that appellant had
been subjected to discrimination when it terminated his employment.
The AJ found that appellant was an individual with a disability, as
defined in the Commission's Regulations, who was otherwise qualified
to perform the essential functions of his position. While the agency
contended that appellant could not perform the duties of his position
without endangering the health and safety of himself or others, the
AJ found that the agency had disregarded appellant's past psychiatric
evaluations from treating physicians, which found that appellant did
not pose any threat of harm to himself or others, and instead focused on
the opinions from Psychiatrist A and Psychologist B, who had not treated
and evaluated appellant over a continuous period of time. In addition,
the AJ noted that appellant's work history contained no incident or
threat of harm to himself or others. The AJ was not persuaded that
appellant could be found to constitute a direct threat only based on his
paranoid disorder and feelings of being threatened, absent any showing
that he had acted on those fears or otherwise acted out aggressively.
While the agency pointed to appellant's possession of guns at home and
his refusal to take any medication, the AJ was not persuaded that, in
the absence of any history of violence, these factors were sufficient to
meet the agency's burden to show that appellant in fact posed a direct
threat to the health and safety of himself or others. Accordingly,
the AJ found that appellant was subjected to discrimination when the
agency terminated his employment effective October 22, 1994.
However, the AJ found that appellant �was not aggrieved by having to
undergo the fitness for duty examination [in June 1994, since appellant]
had already seen several doctors of his own choice.� In addition, the
AJ was not persuaded that appellant was subjected to disparate treatment
when the Postmaster determined that the applicable local union agreement
did not grant appellant the right to see a third physician.
In its FAD, the agency agreed with the AJ that appellant was not
aggrieved when he was sent for an FFD examination because �the agency's
Employee & Labor Relations Manual ... permits the agency to order an
FFD examination at any time and repeat, as necessary, to safeguard
the employee or coworker.� The agency also agreed with the AJ that
appellant had failed to show that he was entitled to a third medical
opinion, since Psychologist B (selected by appellant) concurred with the
recommendations of Psychiatrist A (selected by the agency). However,
the agency timely rejected the RD insofar as it found that appellant's
termination was discriminatory.
The agency found that �the record clearly shows that [appellant] was, in
fact, a high risk and his behavior was to be taken seriously to eliminate
the potential risk of acting out inappropriately on an aggressive level.�
The agency noted that: appellant had been sent for psychiatric evaluations
on at least four separate occasions in a three-year period; the Police
Commissioner was familiar with appellant due to his many calls complaining
of harassment, but the police had not substantiated his allegations;
appellant stated that he owned a gun and may use the gun if necessary;
and, inasmuch as he continued to believe that he was being harassed, he
�continue[d] to exhibit his delusional tendencies as recently as September
10, 1996, the date of [the EEOC] hearing.� (Emphasis in original.)
The agency stresses its firm and unequivocal commitment to do everything
within its power to prevent incidents of work-related violence.
The agency noted that, when appellant was referred for the FFD examination
in September 1992, the official referring him (the Superintendent of
Postal Operations) stated that appellant has been �prone to verbal
outbursts on the workroom floor.� The agency also cited appellant's
disciplinary history which, as noted above, included tardiness, failure to
be regular in attendance, and unscheduled absences or absences without
leave. The agency concluded that based on appellant's behavior
and past history, �it is no wonder that [officials at the Dover Post
Office} determined that [he] needed an immediate psychiatric evaluation,
fearing that [he] was a possible threat to the employees of the Dover
Post Office.�
The agency observed that only six months later, and while at a different
facility, appellant again �exhibited unusual and disturbing behavior�
and that the State Police Department �involuntarily had [him] committed
to a hospital [because] those officials believed that [he] was a �loose
cannon'... [who] was building a case to justify shooting someone and that
[he] was a gun fanatic.� (Emphasis in original.) The agency contends
that appellant's �cheeking' of his anti-psychotic medications while
hospitalized constituted a conscious effort to refuse medical assistance
which exacerbated his disorder.
The agency noted that only 14 months later, and while again at a different
facility, appellant exhibited behavior which concerned agency officials,
and reviewed appellant's statements during the discussion held on June
9, 1994. (See supra.) �Based on [this] situation and knowledge of
[appellant's] past history,� the agency asserted that an FFD examination
was required. Since this examination resulted in �the most current
medical documentation� requiring appellant to undergo psychotherapy and
pharmacotherapy, the agency found that the AJ erred in finding appellant's
refusal to take any medication was irrelevant. Because appellant spent
a great deal of time unsupervised in performing his duties as a Letter
Carrier and because Psychiatrist A's evaluation revealed that he may act
inappropriately to defend himself, the agency found that he posed a risk
in his current medical state. The agency observed that Psychologist B,
selected by appellant, agreed that psychotherapy and pharmacotherapy were
needed. In this regard, the agency noted that the journal appellant kept
from October 23, 1993, through October 25, 1994, contains approximately
300 entries, including quotations from voices stating: �I want you to
blow their f------ heads off... It's the State Police .... they said you
are a threat to national security... I want you to finish it - something
about shoot somebody ... he knows it's you.... She said she's going to
shoot you - he thinks its jealousy.�
In light of appellant's collection of 12 to 13 handguns and his desire
to obtain a permit to carry a weapon, the agency found that a reasonable
person must conclude that there is a significant risk of substantial
harm to the health or safety of appellant or others that cannot be
eliminated or reduced by reasonable accommodation, particularly since
appellant continued to refuse medication. The agency observed that, at
least through April 1995, Psychiatrist C also considered it imperative
that appellant take anti-psychotic medication.
The agency noted that it is public knowledge that it has experienced
several incidents of violence in the workplace, and discusses a December
1996 incident where an official was killed by an employee who had
no record of any previous threats, but whose removal had been upheld
after arbitration. The agency found that �a reasonable person [would]
perceive the [factual] circumstances surrounding the instant case as
more than a direct threat or significant risk of substantial harm.�
(Emphasis in original.) The agency noted that appellant did not disclose
his diagnoses to his current employer. The agency asserted that the AJ
erred by placing inappropriate weight on appellant's prior psychiatric
examinations and by failing to discount Psychiatrist C's claim that
appellant had a �miraculous recovery in one (1) month� which negated
his need for anti-psychotic medication.
Accordingly, the agency argues that it met its burden of showing that
appellant was a direct threat or posed a significant risk of substantial
harm.
On appeal, appellant argues that the agency should not have issued
the notice of removal in September 1994, because he had been pursuing
psychotherapy. In its comments on the appeal, the agency points
out that appellant had not sought a combination of psychotherapy and
pharmacotherapy, as specified in its letter dated August 22, 1994.
ANALYSIS AND FINDINGS
Appellant can establish a prima facie case of disability discrimination by
establishing that: (1) he is an individual with a disability as defined by
EEOC Regulation 29 C.F.R. �1614.203(a); (2) he is a qualified individual
with a disability as defined by 29 C.F.R. �1614.203(a)(6); and (3) he was
subjected to an adverse personnel action under circumstances giving rise
to an inference of disability discrimination. See Prewitt v. United States
Postal Service, 662 F.2d 292 (5th Cir. 1981). EEOC Regulation 29 C.F.R.
�1614.203(a) states that an individual with a disability is one who
has a physical or mental impairment which substantially limits one
or more of such individual's major life activities, has a record of
such an impairment, or is regarded as having such an impairment. Major
life activities include caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. The
medical evidence in the record reveals that appellant has been diagnosed
as having a paranoid disorder-persecutory type. Such a condition may or
may not be considered a disability, depending upon whether or not the
condition substantially limits a major life activity. The Commission
recognizes three factors which should be considered in determining
whether or not a person's impairment substantially limits a major life
activity. They are the duration of the impairment, the severity of the
impairment, and its permanent or long term impact. In the present case,
the record reveals that this condition substantially limits appellant's
ability to interact with others, as demonstrated by his relationship
with his neighbors and his fear that others are seeking to cause his
death; the record also reflects that his condition has continued,
relatively unabated, since at least 1988. Thus, the Commission finds
that appellant's condition is severe enough and of sufficient duration to
result in a substantial limitation of a major life activity. Accordingly,
we find that appellant meets the criteria of 29 C.F.R. �1614.203(a)(1)(I).
Here, the agency asserts that appellant is not a "qualified" individual
with a disability. A qualified individual with a disability is an
individual who, with or without reasonable accommodation, can perform
the essential functions of the position in question without endangering
the health and safety of himself or others. 29 C.F.R. �1614.203(a)(6).
While the agency essentially concedes that appellant performed his duties
in a satisfactory manner,<3> the agency asserts that appellant is not a
qualified individual with a disability because his impairment endangers
the health or safety of others.
The Commission notes that the agency cannot exclude qualified individuals
with disabilities from employment based upon fear of a future risk of
injury, without engaging in the individualized assessment required
by the Rehabilitation Act into whether their disabilities pose a
"direct threat" of substantial harm. Specifically, EEOC Regulation 29
C.F.R. �1630.15(b)(2) provides that an employer may require that an
individual not pose a direct threat to his health and safety, or that
of others. Rather, a "direct threat" is defined as: "a significant risk
of substantial harm" which cannot be eliminated or reduced by reasonable
accommodation. 29 C.F.R. �1630.2(r).
A determination as to whether an individual poses a significant risk of
substantial harm cannot be based on an employer's subjective perceptions,
irrational fears, patronizing attitudes or stereotypes about the nature
or effect of a particular disability, but must rely on objective, factual
evidence, including input from the individual with the disability, the
individual's experience in previous similar positions, and the opinions
of medical doctors who have expertise in the disability involved and/or
direct knowledge of the individual with the disability. See Appendix
to 29 C.F.R. Part 1630. The employer must identify the specific risk
posed by the individual, and conduct an individualized assessment of the
individual's present ability to safely perform the essential functions of
the job. In determining whether an individual would pose a direct threat,
the factors to be considered include: (1) the duration of the risk; (2)
the nature and severity of the potential harm; (3) the likelihood that
the potential harm will occur; and (4) the imminence of the potential
harm. 29 C.F.R. �1614.2(r).
With the foregoing in mind, the Commission first addresses appellant's
placement on administrative leave on June 13, 1994. The record
establishes that officials at the Allentown Post Office were aware that
appellant had been diagnosed as having a paranoid disorder-persecutory
type and that he had been ordered to undergo FFD examinations in the
recent past, all of which found that he did not pose an imminent danger
to the health and safety of himself or others. However, in his discussion
with the Postmaster, appellant stated that the community water supply was
spiked with �No-Doz� in order to keep him awake; that someone had rammed
his vehicle while he was at the Dover Post Office; that his neighbors were
trying to scare him into vomiting while sleeping so that he will choke
to death; and that he was hearing voices at his home on a daily basis,
which awoke him at times which he related to the caliber of weapons.
Inasmuch as appellant introduced the violent ideation of weaponry,
the Commission believes that, even considering his record as having
a paranoid disorder-persecutory type and his prior history as having
been found not to pose a threat to himself or others, these statements
gave officials a reasonable belief, based on objective evidence, that
a psychiatric examination was �job-related and consistent with business
necessity.� EEOC Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities (March 25, 1997).<4>
Consequently, the Commission finds that appellant was not subjected to
discrimination on the basis of a mental disability when he was required
to undergo a psychiatric FFD examination in June 1994. In addition, the
Commission finds that the agency acted appropriately when Psychiatrist
A submitted his report in June 1994, which found that appellant was not,
in fact, fit for duty until and unless appellant underwent psychological
testing and active psychiatric treatment in light of his auditory
hallucinations and active psychosis. Having received a report from
a board certified psychiatrist which stated that, due to appellant's
delusional belief in his persecution and his ownership of weapons,
�there is a real possibility that he may be of danger to others,� to
such an extent that �serious consideration [should] be given to his
involuntary commitment,� the agency acted appropriately in refusing
to permit appellant to return to duty at that time. See, e.g., Nori
v. United States Postal Service, EEOC Request No. 05960866 (August
29, 1996). Appellant was offered assistance in obtaining treatment
and offered annual or sick leave, or leave without pay for the period
of treatment. Furthermore, when appellant sought such psychological
testing and treatment from Psychologist B, the report submitted by
Psychologist B in August 1994, also found that appellant was not fit for
duty in that he presented a high risk for acting out inappropriately on
an aggressive level due to his active auditory hallucinations and deeply
ingrained delusional system of persecution.
In this regard, the Commission finds that the AJ erred in holding that
the agency's actions constituted a �disregard[] [for] past psychiatric
evaluations from treating physicians ... including two psychiatrists who
had treated and evaluated [appellant] over a continuous period of time
and not just one and a half to two hours as did {Psychiatrist A} and
[Psychologist B].� The Commission finds no evidence in the record that,
prior to the Summer of 1994, appellant was treated �over a continuous
period of time� by any psychiatrist, with the possible exception of the
seven-day period he was involuntarily committed in April 1993.<5> The
report submitted by Psychologist B reflects that he saw appellant on four
occasions over a four-week period, administrating several psychological
tests (including the Minnesota Multiphasic Personality Inventory-2)
and reviewing appellant's previous medical/psychiatric records, police
reports and personal diary. No other psychiatric report in the record
establishes a longer or more thorough examination of appellant.
Based on the reports submitted by Psychiatrist A and Psychologist B, the
Commission finds that the agency acted appropriately when it determined
in August 1994, that appellant was then not fit for duty and, therefore,
advised him that he had the option of seeking psychiatric treatment,
applying for disability retirement or resigning. When appellant failed
to exercise any one of these options, the agency issued the letter
notifying appellant that he would be terminated effective October 22,
1994. After a careful review of the record, the Commission finds that
this termination decision did not constitute discrimination.
Insofar as appellant began treatment by Psychiatrist C in January
1995, the Commission is not persuaded that the agency discriminated
against appellant when it questioned her change of opinion in May 1995.
The agency was aware that Psychiatrist C deemed appellant's agreement to
take anti-psychotic medication so imperative in April 1995, that she would
refuse to see him if he did not agree. Accordingly, when Psychiatrist
C abruptly altered her opinion in May 1995, the agency consulted with
Psychiatrist A (who was board certified) who advised that such a dramatic
reversal was unlikely given the appellant's lengthy history, the lack
of medication and the short period of time he had been treated.
Insofar as appellant contends on appeal that he either complied with,
or the agency did not grant him adequate time to comply with, the
arbitrator's decision, the Commission advises appellant that he should
seek enforcement of the arbitrator's decision through the means provided
by the applicable union agreement and the law.
As a final matter, the Commission finds no reason to disturb the AJ's
finding that appellant was not subjected to discrimination when the
Postmaster determined that the applicable local union agreement did not
grant appellant the right to see a third physician.
CONCLUSION
After a careful review of the record, and for the reasons set forth above,
it is the decision of the Commission to AFFIRM the FAD.
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. �1614.604(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:
June 21, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1A letter to the psychiatrist conducting this FFD examination, indicates
that the agency had appellant undergo an FFD examination �[a]bout four
years ago, [after appellant] claimed that people were poisoning him
through his food.� Appellant was apparently found fit for duty after
that examination. Report of Investigation, Ex. I-7Bi, p. 109.
2The voices said: � ...they want you dead,� �...they're going to kill
you,� �...heart attack,� �...teach you to mess with me,� and �...you
can't prove anything.�
3The Commission finds unpersuasive any contention by the agency
that appellant's disciplinary record, which contains only attendance
infractions, precluded him from meeting the qualifications for his
position.
4The Commission notes that the AJ erred insofar as she stated that
appellant, or other qualified individuals with disabilities, would not
be aggrieved by having to undergo FFD examinations merely because they
have �already seen several doctors of [their] choice.�
5The record establishes only that, during this period, appellant was
prescribed anti-psychotic medication (which he refused to take) and
that he was seen by a psychiatrist on April 23, 1993, who addressed the
issue of whether appellant could be involuntarily restrained under the
applicable state Mental Health Act.