01971395
03-05-1999
Louise Frage, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Northeast/N.Y. Metro Area), Agency.
Louise Frage v. United States Postal Service
01971395
March 5, 1999
Louise Frage, )
Appellant, )
)
v. ) Appeal No. 01971395
) Agency No. 4A-117-1066-95
William J. Henderson, ) Hearing No. 160-95-8698X
Postmaster General, )
United States Postal Service )
(Northeast/N.Y. Metro Area), )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint alleging that the agency
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. and Section
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 her on the bases of reprisal (prior EEO complaints) and/or
because of her mental disability (post-traumatic stress disorder) when
appellant's December 1, 1994, request for a fitness-for-duty examination
was not granted until January 20, 1995, and when she was not returned
to work until February 2, 1995. Following the agency's investigation of
her complaint, appellant requested a hearing with an EEOC administrative
judge (AJ). A hearing was held on February 8, 1996. Subsequently, on
February 20, 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 November 1, 1996.<1>
In his recommended decision, the AJ found that appellant failed
to establish that she was a disabled individual within the meaning
of the Rehabilitation Act and the Commission's regulations. See 29
C.F.R. �1614.203(a). Specifically, the AJ found that during the hearing
there had been no argument or medical evidence to show that appellant's
alleged mental condition substantially limited a major life activity
on a permanent basis. The AJ further determined that the medical
evidence in the record failed to establish that appellant's condition
was severe enough or would have such a long term impact that it could
be deemed substantially limiting. The AJ further noted that appellant
did not have a record of a substantially limiting impairment nor was she
regarded as having such an impairment. In the absence of such evidence,
the AJ concluded that appellant failed to establish a prima facie case
of disparate treatment discrimination on the basis of mental disability.
Regarding appellant's reprisal claim, the AJ found that appellant
established a prima facie case of discrimination. However, the AJ
found that the agency successfully rebutted appellant's inference of
discrimination by providing three legitimate, nondiscriminatory reasons
for not immediately scheduling appellant for a fitness-for-duty exam
when requested on December 1, 1995. The AJ acknowledged appellant's
attempts to show that the agency's explanation was pretext for prohibited
discrimination, however, he found appellant's argument unpersuasive.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); Wrenn v. Gould, 808 F.2d
493, 500 (D.C. Cir. 1987) (applying the McDonnell Douglas standard
to reprisal cases); and Oberg v. Secretary of the Navy, EEOC Request
No. 05890451 (July 20, 1989)(applying the McDonnell Douglas standard to
disability discrimination based on disparate treatment). 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 she had a disability which substantially limited a
major life activity. As the AJ correctly noted, appellant's mental
condition appeared to have been a temporary one. The Commission has
found that temporary conditions do not constitute disabilities under the
Rehabilitation Act. Loniello v. Department of the Air Force, EEOC Appeal
No. 01951539 (September 19, 1996); Mashall v. Department of the Navy,
EEOC Request No. 05950004 (June 2, 1995). We acknowledge appellant's
arguments presented on appeal however, we discern no legal basis to
reverse the AJ's finding of no discrimination.
As an additional finding, we note that appellant's statement in support
of her appeal appears to raise a reasonable accommodation claim (denied
transfer request) as well as a disparate treatment claim. We note that
the AJ did not entertain appellant's reasonable accommodation claim
and it appears from the record that this issue was never accepted by
the agency in this complaint. Nevertheless, we find that the record
contains sufficient information for us to resolve the issue. In order
to establish a prima facie case for a failure to provide a reasonable
accommodation claim, appellant must first establish that she is an
individual with a disability. As we discussed above, appellant failed
to do this. Therefore, appellant is not entitled to the protections
of the Rehabilitation Act. In light of this finding the agency had no
obligation to provide appellant a reasonable accommodation. 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 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1According to the record, the agency did not receive the AJ's recommended
bench decision until November 1, 1996.