U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
John A. Kellus, Jr.,
Appellant,
v.
Marvin T. Runyon, Jr.,
Postmaster General,
United States Postal Service,
Agency
Appeal No. 01933283
Agency Nos. 4-L-1078-1, 4-L-1081-1
Request No. 05940470
1994 EEOPUB Lexis 438
June 23, 1994
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 21, 1994, John A. Kellus, Jr. (hereinafter referred to as appellant) timely initiated a request to the Equal Employment Opportunity Commission (Commission) to reconsider the decision in John A. Kellus, Jr., v. Marvin T. Runyon, Jr., EEOC Appeal No. 01933283 (February 15, 1994) received on February 19, 1994. EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous decision. 29 C.F.R. § 1614.407(a). The party requesting reconsideration must submit written argument or evidence that tends to establish one or more of the criteria prescribed by 29 C.F.R. § 1614.407(c): 29 C.F.R. § 1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued), 29 C.F.R. § 1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy), and 29 C.F.R. § 1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). Appellant appears to base his request on 29 C.F.R. § 1614.407(c)(1) and (c)(2). For the reasons set forth herein, appellant’s request is denied.
ISSUE PRESENTED
(1) Whether the previous decision properly found that appellant’s complaints should not be remanded to the agency for a hearing.
(2) Whether the previous decision properly found that appellant failed to prove that the following agency actions were motivated by intentional disability discrimination.
BACKGROUND
In a formal complaint dated June 22, 1991, appellant, who was employed as a procurement, property and supply assistant, asserted that based upon his disabilities (mental and physical), n1 that his supervisors prevented him from assuming all of the duties of his position and failed to afford him adequate training. Appellant further alleged that he was harassed by his supervisors on the bases of his mental and physical disabilities. Specifically, he alleged that his supervisor said she did not view his mental illness as a disabling condition and “found something funny in it.” He also alleged that his second-level supervisor laughed at a doctor’s slip regarding job stress, which appellant provided after returning from sick leave.
In a formal complaint dated June 26, 1991, appellant alleged that he was discriminated against based upon his disabilities when an associate management position was posted by the agency that required a mobility statement (i.e., regarding ability to travel), completion of a Form 991 (Application for Management Associate Program) and a college education, before being considered. Appellant stated that he could not travel because of his weight loss program and counseling, that he had nothing to put on the Form 991 because training was given to nondisabled employees, and that he could not challenge any of these “barriers” because the agency facility had no handicap advisory committee.
The agency accepted the foregoing complaints, separately investigated them and issued notices of proposed disposition finding no discrimination. The complaints at issue herein (Agency Case Nos. 4-L-1078-1 and 4-L-1081-1) together with Agency Case Nos. 4-L-1028-1, 4-L-1145-2, 4-L-1050-0, and 4-L-1033-1 n2 were consolidated for hearing before an EEOC Administrative Judge (AJ). Ten minutes prior to the January 11, 1993 scheduled pre-hearing conference, appellant telephoned the AJ and requested a four-month continuance of both the conference and the hearing, which had been scheduled for January 19, 1993. Appellant asserted that his physician had advised him that it would be too stressful for him to handle the cases at the present time. The AJ directed appellant to submit his request for a continuance in writing and to submit the reasons for the request, including supportive documentation. Appellant agreed to submit his request postmarked no later than January 16, 1993. n3 Appellant never submitted the agreed-upon request for a continuance or withdrawal of his hearing request. Nor did appellant inform the AJ that he was unable to do so. On February 23, 1993, the District Director of the EEOC’s Chicago District Office remanded appellant’s complaints to the agency for the issuance of final agency decision(s) based upon what he characterized as appellant’s failure to prosecute and to cooperate.
Thereafter, the agency issued a final agency decision (FAD) finding no discrimination on the two complaints at issue herein. Appellant appealed to the Commission. On appeal, appellant produced a July 6, 1993 letter from his psychologist stating that depression and post-traumatic stress disorder “apparently rendered him relatively vegetative” in December 1992 through April 1992 and “may have impaired [him] from being able to proceed with his case in a psychologically strong and functional manner.” A January 29, 1993 letter from the psychologist, apparently never submitted to the AJ, also indicated that due to his condition appellant might “not be able to perform well emotionally in a hearing that may be conducted during this time.”
On appeal, without addressing the above medical documents, the previous decision held that the AJ properly remanded the case to the agency for a final decision on the record. In support of this ruling, the decision cited EEOC Regulation § 1614.109(d)(3), which provides that when a complainant “fail[s] without good cause shown to respond fully and in a timely fashion to requests for documents, the administrative judge may...issue a decision fully or partially in favor of the opposing party...or take such other actions as appropriate.” The decision found that based upon appellant’s failure to submit a written request for a continuance after his verbal request, it was within the AJ’s discretion to remand the case to the agency for a final decision on the record.
The previous decision further found that appellant had not demonstrated that the arthritis in his knees and the stress and anxiety, which had necessitated his absences from work, substantially limited any major life activity. The decision further found that there was no evidence that appellant was regarded as disabled by his supervisors based on his obesity. The previous decision indicated that it relied on two pieces of medical evidence in reaching its determination; a May 23, 1990 note from appellant’s counseling clinical psychologist that indicated he was recovering from stress and anxiety, and a note dated May 24, 1990 from appellant’s primary care physician indicating only that appellant had arthritis of the knees. The decision did not address two other pieces of medical evidence in the investigative record, which postdated the alleged discrimination, i.e., a June 28, 1991, fitness-for-duty report that stated appellant was morbidly obese and noted his depression and knee problems, and an October 11, 1991, psychologist’s letter that diagnosed him as having major depression, a generalized anxiety disorder and an unspecified personality disorder. n4 The latter document stated appellant had been hospitalized four times for depression and had undergone two psychiatric fitness-for-duty examinations. On appeal, appellant provided further medical documents from November 1992 forward regarding various impairments, absences and light duty requests.
The decision went on to state that even if it were assumed appellant was an individual with a disability, the agency had articulated legitimate nondiscriminatory reasons for its actions. Specifically, with regard to appellant’s allegation of harassment by his second-level supervisor, the previous decision found that the supervisor stated that he did not laugh at appellant, but merely asked him whether his condition made him a qualified person with a disability. n5 With regard to appellant’s allegation that he was not permitted to assume the duties of his bidded position and was not properly trained, the previous decision found that appellant was unavailable for scheduled training because of excessive absences and that due to insufficient training appellant was not yet able to perform some of the more complicated aspects of his new job. The decision further found, with regard to appellant’s allegation regarding the posting of the management associate position, that the agency stated that any agency employee, including appellant, could apply for the subject position and that the mobility statement was included in the application for the subject position in order to determine an applicant’s ability to travel as required by the position. The previous decision found that appellant had not provided any evidence to prove pretext in the foregoing articulated reasons.
With his request for reconsideration, appellant submits numerous documents, some not previously in the record of this particular case, relating to his morbid obesity, arthritis, and major depression and to his requests for light duty over a period from 1987 until the present date. Also among the documents is an arbitrator’s decision sustaining his grievance on a 14-day suspension, a June 6, 1991, request for official time from the agency for preparation of an appeal in another case, a June 17, 1992 denial of accommodation from the agency and the agency’s April 21, 1992 discovery response in the course of a Merit Systems Protection Board (MSPB) appeal filed by appellant.
Appellant asserts that he was improperly denied a right to a hearing on his complaints and that during such a hearing he could have submitted all the enclosed documents which indicate that the agency was aware of his disabilities, regarded him as disabled, and had records of his impairments going back about 10 years. Appellant asserts that before remanding his case to the agency for a final decision on the basis of failure to prosecute, the Administrative Judge (AJ) must give him written notice that such failure to proceed in a timely fashion will result in a remand. As on appeal, appellant cites Hill v. United States Postal Service, EEOC Appeal No. 01840591 (April 9, 1985) to support his argument. He notes that the Commission’s regulations in Title 29 C.F.R. Part 1614 require such written notice from an agency rejecting a complaint for failure to prosecute.
Appellant raises arguments concerning numerous other actions (not the subject of the present complaints) allegedly violative of the Rehabilitation Act taken by the agency over the course of his employment. He refers to other EEO complaints he has filed and to the agency’s alleged repeated failure to accommodate him since 1990. Appellant further alleges that the agency’s answers to the MSPB discovery request he has submitted indicate that the agency does not comply with the requirements of the Rehabilitation Act.
He also alleges generally that the agency has denied him official time to prepare his case and to be present at the subject EEO conference with the AJ. n6 The agency has responded to appellant’s request for reconsideration by asserting that it fails to meet the criteria required by the Commission’s regulation in order to grant such reconsideration.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that appellant’s request for reconsideration fails to meet any of the criteria 29 C.F.R. § 1614.407(c). It is therefore the decision of the Commission to deny his request.
Initially, appellant asserts that the AJ and the EEOC District Director acted erroneously in remanding his complaints to the agency for the issuance of a final agency decision. However, our review of the record indicates that the AJ and the EEOC District Director acted correctly in remanding appellant’s complaints due to his failure to provide the AJ with the promised written postponement request and medical documentation or to otherwise contact him or the District Office. Even on reconsideration, appellant does not provide the Commission with medical documentation that shows he was unable to proceed to the hearing or otherwise contact the AJ.
The July 6, 1993, letter from appellant’s psychologist produced on appeal uses indefinite and equivocal language such as that appellant was “apparently” rendered “relatively vegetative” to describe appellant’s condition and capabilities during the relevant time period. The January 29, 1993 letter also indicates only that he might not be able to perform well at a hearing. We find this to be insufficient evidence of appellant’s alleged incapacity to proceed or otherwise contact the Commission. While appellant was out on sick leave during much of the subject time period, he returned to duty in early February, 1993, yet did not contact the Commission at that time. In this circumstance, the previous decision properly held that an AJ may remand a case to the agency for decision on the record. See EEOC Regulation 29 C.F.R. § 1614.109 (d)(3)(V).
Further, the Hill decision upon which appellant relies to support his claim that he was entitled to be given 15-days notice before his complaints were remanded was reached pursuant to Commission Order No. 965, issued January 4, 1982, which has since been revised, inter alia, eliminating this requirement. See EEOC Order No. 960.003, issued July 1, 1991. n7 While the use of failure to prosecute language by the district office in remanding appellant’s complaint would be better suited to an agency procedural rejection, the resultant remand was correct.
Next, we will address appellant’s numerous exhibits and arguments concerning the merits of the previous decision. In doing so, we note that none of the documentation now presented by appellant meets the requirement for reconsideration as new and material evidence, in that much of this evidence has been in existence during the processing of appellant’s complaints. Furthermore, the evidence relating to appellant’s later physical condition in 1992-1993 is not material to the disposition of appellant’s complaints concerning agency actions taken in May of 1991.
However, we find that the prior decision requires modification in regard to its finding that appellant did not show he was a qualified person with a disability. n8 Based on the diagnosis of appellant as having major depression, for which he had been hospitalized four times, we conclude that he has a mental disability. We also note that the records of four other cases, appealed to this Commission at the same time as the instant case and being decided concurrently with this request for reconsideration (EEOC Appeal Nos. 01933281, 01932182, 01933284 and 01933285), contain medical evidence establishing that appellant’s morbid obesity and knee impairment, at least in conjunction with one another, constitute a disability. We also find that he is a qualified person with a disability given his adequate performance of his position with the periodic provision of light duty. Therefore, the previous decision is modified to include these findings.
However, even finding that appellant met the threshold definition of a qualified individual with a disability, we still conclude that he has not established a prima facie case of intentional disability discrimination in the agency’s actions towards him. As held in the previous decision, the agency articulated legitimate, nondiscriminatory reasons for its actions towards appellant in each of the instances alleged. Appellant’s second-level supervisor stated that he did not laugh at appellant, but merely smiled and said OK when he accepted appellant’s leave slip. Appellant’s first-level supervisor stated she also did not laugh at him but at his statement that she should accept his unsupported assertion that he had a disability. The previous decision also properly found that the agency rebutted appellant’s prima facie case through testimony that appellant was unavailable for scheduled training and that due to insufficient training he was not yet able to perform some of the more complicated aspects of his new job; that any agency employee, including appellant, could apply for the subject Management Associate position; and that the mobility statement was included in the application for the subject position in order to determine an applicant’s ability to travel as required by the position. Appellant has not provided any evidence to prove that the previous decision’s finding that he had failed to prove the foregoing reasons to be pretexts for intentional disability discrimination was erroneous.
In this regard, we note that many of appellant’s arguments in his reconsideration request, including with regard to accommodation requests, many of which occurred after the events herein, relate either to other EEO complaints not before the Commission in the present case or to issues upon which there do not appear to be any pending complaints. n9 Appellant’s allegations regarding the agency’s responses to an MSPB discovery request do not relate to the issues before the Commission in the subject complaints. Nor do the agency’s limited responses sufficiently prove appellant’s assertion that the agency is not in compliance with the requirements of the Rehabilitation Act.
Finally, appellant asserts generally that he has been denied official time by the agency over the course of complaint processing. In support, appellant presents an official time request for another complaint. We do not find that either this lone document or appellant’s contentions on appeal support a finding that he has been denied official time in violation of EEOC Regulations at 29 C.F.R. § 1614.605(b).
CONCLUSION
Thus, after a review of the appellant’s request to reconsider, the agency’s response thereto, the previous decision, and the entire record, the Commission finds that appellant’s request fails to meet the criteria of 29 C.F.R. § 1614.407(c), and it is the decision of the Commission to deny appellant’s request. The decision in EEOC Appeal No. 01933283 (February 15, 1994) as modified herein remains the Commission’s final decision. There is no further right of administrative appeal on a decision of the Commission on this Request to Reconsider.
Notes
1 The record indicates that morbid obesity, major depression and degenerative arthritis of the knees are the impairments appellant is relying upon in the subject complaints to establish that he is disabled.
2 These four other formal complaints are presently pending before the Commission in EEOC Appeal Nos. 01933281, 01933282, 01923284 and 01933285. A decision on these appeals is being issued concurrently with this decision.
3 Appellant was also informed that if he wished to temporarily withdraw his request for a hearing for medical reasons and without prejudice to renew it at a later date, he needed to submit a letter so stating “right away.” While appellant agreed to do so, no such letter was submitted.
4 The Diagnostic and Statistical Manual of Mental Disorders, Third Edition, Revised (DSM-III-R) defines major depression as including such daily symptoms as depressed mood, markedly diminished interest in activities, insominia or hypersomnia, weight loss or gain, restlessness, fatigue, feelings of worthlessness or guilt, diminished concentration or indecisiveness, and recurrent thoughts of death. DSM-III-R (American Psychiatric Association, 1987), p. 222. Generalized Anxiety disorder is defined as having the essential feature of “unrealistic or excessive anxiety and worry” about life circumstances. DSM-III-R, p. 251.
5 We note in this regard that the previous decision, which addresses only one individual’s actions, appears to have confused the alleged discrimination by two supervisors.
6 On appeal, appellant also alleged that he had been denied official time, asserting that he needed “some months” at home to put his complaint files in order. The previous decision did not address the official time issue.
7 While we note that Appendix A, Section 7(b) of Order 960.003 (The Administrative Judge’s Handbook) suggests that notice to the parties should be a prerequisite to a remand “in most instances,” we find that the circumstances of the present case, which involved appellant’s failure to either produce a promised request for a continuance and medical documentation by a date certain or to otherwise contact the Commission, even after he returned to work at the agency, indicate that the Commission’s remand was appropriate.
8 An individual with a disability is one who has, has a record of having or is regarded as having an impairment that substantially limits one or more major life activity. 29 C.F.R. § 1614.203(a)(1). A qualified person with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the position in question. 29 C.F.R. § 1614.203(a)(6).
9 In this regard, while we note that appellant’s complaints referred generally to denial of accommodation by the agency, the lack of specificity offered by appellant throughout their processing suggests that these statements were meant only to be treated as background information and not as independent issues to be accepted and investigated by the agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
John A. Kellus, Jr.,
Appellant,
v.
Marvin T. Runyon, Jr.,
Postmaster General,
United States Postal Service,
Agency
Appeal Nos. 01933281, 01933282, 01933284, 01933285
AgencyNos. 4-L-1050-0, 4-L-1145-2, 4-L-1033-1, 4-L-1028-1
1994 EEOPUB Lexis 439
June 23, 1994
DECISION
INTRODUCTION
On June 11, 1993, John A. Kellus, Jr. (hereinafter referred to as appellant) timely appealed the final agency decisions, received on May 13 and 17, 1993, that it did not discriminate against him when it took the following agency actions. See § 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.. We accept appellant’s appeal pursuant to EEOC Order No. 960, as amended. For the reasons that follow, the agency’s decision in EEOC Appeal No. 01933285 (agency case no. 4-L-1028-1) is REVERSED in part and AFFIRMED in part. The agency decisions in the remaining appeals are AFFIRMED.
ISSUE PRESENTED
The issue presented is whether appellant has proven that various actions taken by the agency were motivated by sex, reprisal and/or disability discrimination.
BACKGROUND
In a formal complaint dated July 26, 1990 (Agency Case No. 4-L-1050-0), appellant asserted that based on his sex and disability (mental and physical) (1) he was not selected for the position of General Clerk on June 1, 1990, and (2) he was denied EEO counseling on June 27, 1990. n1
In a formal complaint dated January 20, 1991 (Agency No. 4-L-1028-1), appellant alleged that based on his disabilities, (3) the agency’s Director of Human Resources instructed him on August 15, 1990, to lose weight, and (4) he was denied access to an EEO counselor on October 29, 1990. Appellant asserted that while the agency was requiring him to lose weight or lose his job on a continuing basis, he was the only employee required to do so, and the agency refused to assist him in any manner. As corrective action for his complaint, appellant requested, inter alia, that the agency pay all costs incurred by him on weight loss programs and payment for sick and other leave he had to utilize because of this program.
In a formal complaint dated February 13, 1991 (Agency Case No. 4-L-1033-1), appellant asserted that based on his sex, on reprisal for prior EEO activity, and on his physical and mental disabilities, (5) he was subjected to a 14-day suspension for failure to maintain a regular schedule, (6) he was denied a PS Form 256 on which he intended to identify his disability, and (7) he was denied access to a “Handicapped Advisory Committee.”
In a formal complaint dated November 23, 1991 (Agency Case No. 4-L-1145-2), appellant asserted that based on his sex and physical and mental disabilities, he was discriminated against by the agency when it (8) posted a Supervisor, PSDS, EAS-15 vacancy, which required the submission of a PS Form 991, (9) failed to have a program for the hiring, placement, and promotion of the disabled, (10) was not accessible to the disabled, (11) did not have a disabled advisory committee, (12) failed to carry out the Fiscal Year 1990 (FY 90) affirmative action program plan and FY 90 accomplishment report for individuals with disabilities, and (13) denied him training opportunities for the PSDS position.
The agency accepted the foregoing complaints, separately investigated them and issued separate notices of proposed disposition finding no discrimination. With regard to Agency Case No. 4-L-1050-0, after being unable to deliver the PD to appellant, the agency adopted its PD as its final agency decision finding no discrimination. Appellant appealed this determination to the Commission which issued a finding of no discrimination in EEOC Appeal No. 01912819 (October 2, 1991). In EEOC Request No. 05920198 (April 20, 1992), the Commission granted appellant’s request for reconsideration, finding that the agency had improperly failed to afford appellant the opportunity to request an administrative hearing. The Commission remanded appellant’s complaint for an administrative hearing. On remand, Agency Case Nos. 4-L-1028-1, 4-L-1078-1, 4-L-1081-1, 4-L-1145-2, 4-L-1050-0, and 4-L-1033-1 were consolidated for hearing before an EEOC Administrative Judge (AJ). Ten minutes prior to the January 11, 1993 scheduled pre-hearing conference, appellant telephoned the AJ and requested a four-month continuance of both the conference and the hearing, which had been scheduled for January 19, 1993. Appellant asserted that his physician had advised him that it would be too stressful for him to handle the cases at the present time. The AJ directed appellant to submit his request for a continuance in writing and to submit the reasons for the request, including supportive documentation. Appellant agreed to submit his request postmarked no later than January 16, 1993. n2 Appellant never submitted the agreed-upon request for a continuance or withdrawal of his hearing request. Nor did appellant inform the AJ that he was unable to do so. On February 23, 1993, the District Director of the EEOC’s Chicago District Office remanded appellant’s complaints to the agency for the issuance of final agency decision(s) based upon what he characterized as appellant’s failure to prosecute and to cooperate.
Thereafter, the agency issued separate final agency decisions (FADs) finding no discrimination on each of appellant’s complaints. n3 It is from these decisions that appellant now appeals. On appeal, appellant asserts that the AJ failed to give him written notice that his failure to proceed in a timely fashion would result in a remand to the agency for failure to prosecute. Appellant asserts that the provision of such notice by the AJ is required and cites the Commission’s decision in Hill v. U.S. Postal Service, EEOC Appeal No. 01840591 (April 9, 1985) as support for this position. Appellant asserts on appeal that the AJ and the District Director did not seem to understand that stress and depression made it impossible for him to respond to the AJ. He asserts that a double standard is being applied to the agency and himself in that the agency has still not fully complied with the Commission’s decision in EEOC Request No. 05910665, without providing any reason for its long delay, but has not been punished for its inaction. Appellant encloses a letter from his psychologist dated July 6, 1993, in which the psychologist states:
[Appellant] is apparently suffering from an Affective Disorder, Major depression, as well as Post Traumatic Stress Disorder with a degree of severity which apparently rendered him relatively vegetative during December of 1992 through April of 1993. Due to these emotional and psychological issues which apparently affected him may have impaired [sic] from being able to proceed with his case in a psychologically strong and functional manner.
Appellant also submits a similar note dated January 29, 1993, which was apparently never submitted to the AJ or the EEOC District Director, in which his psychologist asserts that due to appellant’s “apparent emotional condition” from stress and depression, “it may be that appellant would not be able to perform well emotionally in a hearing that may be conducted during this time.” Appellant also presents a letter from this psychologist dated January 29, 1993 which states that he was unable to work from January 11, 1993 to February 2, 1993 due to depression and job stress, but that he could return to work on February 3, 1993.
Appellant also asserts on appeal that he needed time at home to organize his materials and prepare his case and that the agency refused to assist him in his efforts to do so. He claims that the agency’s continuing failure to accommodate his disabilities led to depression and stress, which rendered him unable to proceed to the hearing.
Agency Case No. 4-L-1050-0
At the time of the subject events, appellant was employed by the agency’s Springfield, Illinois facility as a PS-level 5 Distribution Clerk. The record indicates that the alleged disabilities upon which appellant based the complaints herein were mental (anxiety and depression) and physical (morbid obesity and degenerative arthritis in both knees). Appellant asserts and the record reveals that he has been accommodated by the agency in a light duty capacity on and off since 1987. The instant complaint is also brought on the basis of sex.
On January 3, 1990, the agency posted a General Clerk position for bid which required that the successful bidder be able to type at 45 net words per minute (NWPM) as measured by the agency’s typing examination. The record indicates that one of the duties and responsibilities of the General Clerk, PS-5 position is to type correspondence and memoranda from rough drafts, general information, etc. Appellant bid on the position at issue. By letter dated May 29, 1990, appellant was informed that he had been rated “ineligible” on the typing qualification examination. A female, non-disabled employee was the successful bidder for the General Clerk, PS-5 position.
By letter dated May 31, 1990, appellant’s physician indicated that appellant’s “physical handicaps” (knee degeneration) made a standing job painful and that appellant would perform productively in a position that was mainly sedentary and cognitive, such as the subject General Clerk position. By letter dated June 7, 1990, another physician wrote that appellant had been under his care for treatment of bilateral knee pain related to degenerative arthritis of the knees and that he had advised appellant that a job in which he was able to sit during most of his working time might give him some relief of his knee pain. A third letter dated June 19, 1990, from appellant’s psychologist indicates that appellant appeared to be suffering from depression and anxiety, which appellant attributed to job stress, and that appellant would have fewer problems with stress if he were in a day job such as the subject General Clerk position. Appellant requested that the agency waive the typing requirement in order to award him the subject position as an accommodation for his alleged disabilities. On June 25, 1990, the agency’s Director of Human Resources responded to appellant’s request, indicating that vacancies are to be awarded to the senior qualified bidder and stating that neither the local management or the union had the authority to waive the subject typing requirement.
Appellant averred that he was denied EEO counseling on June 27, 1990. The ad hoc EEO counselor averred that while appellant approached him for EEO counseling, he was unable to see appellant on that date, but provided him with counseling on July 10, 1990.
Agency Case No. 4-L-1028-1
With regard to this complaint, appellant alleges that he was discriminated against based upon his mental and physical disabilities when, on August 15, 1990, he was informed that he had until November 15, 1990 to lose weight or face a fitness-for-duty examination. The record indicates that appellant submitted an August 11, 1990, light duty request due to arthritis of the knees and an August 9, 1990, statement from his treating physician, which asked that appellant not be required to work overtime or engage in any prolonged standing due to his knee degeneration. On August 10, 1990, the agency’s Director of Human Resources indicated that she would like to meet with appellant on August 15, 1990 to discuss “some concerns” regarding his knee degeneration condition. An August 23, 1990 letter from appellant’s physician indicates that during the meeting it was decided that appellant “shall lose weight by 11/15/90 or face a fitness for duty.” The Director of Human Resources averred that at the time of her meeting with appellant, he had been on light duty for several months due to a knee or leg problem, and that his physicians had indicated that appellant needed an operation but that he would have to lose a considerable amount of weight prior to any surgery. She asserted that at that time the agency was considering sending appellant for a fitness for duty examination to determine the status of his health. She averred that during the meeting she expressed her concern over appellant’s health and told appellant that the agency would postpone sending him for a fitness for duty examination provided he would make a sincere effort to lose weight. She stated that she established a “three month period of assessment” in order to give appellant the opportunity “to demonstrate a commitment.” By way of further explanation for her actions, the Director stated that she “was merely giving appellant an additional opportunity to improve his health before reassessing the need for a fitness for duty examination” and was “attempting to help him.”
In a November 5, 1990 letter to the Director of Human Resources, appellant referred to the ultimatum he had received and indicated that after experiencing little success with the Weight Watchers program, his physician had referred him to a Diabetes and Endocrine Center. He also forwarded a letter from the Center’s Medical Director who indicated that appellant was morbidly obese with a body weight of 456.8 pounds, which was 268 percent of his ideal body weight, and that appellant also had hypertension, sleep apnea, gout, and degenerative arthritis of both knees. He stated that appellant had been prescribed a medically supervised supplemented very low calorie diet with a long-term intensive behavioral component.
By letter dated December 24, 1990, the Director of Human Resources indicated that she had received the “update” regarding the progress appellant had made in the weight management program and that she was pleased with the results and the prognosis. In closing, she specifically stated that:
As long as your progress continues according to the program’s expectations; the fitness for duty examination which we had discussed will be postponed. Please keep me updated on your accomplishments.
The investigative report on the subject complaint contains a report completed by an agency n4 physician summarizing findings reached by him pursuant to a June 11, 1991 fitness for duty examination. This physician characterized appellant’s “main problem” as morbid obesity. He stated that while appellant had been to multiple weight loss programs, he had been “unable to follow through the program.” He asserted that appellant “slipped one time during the interview and admitted to liking ice cream and coke on occasion.” He indicated that, inter alia, appellant had a possible torn meniscus in both knees upon which his physician refused to operate until he lost 200-250 pounds. He conveyed his general impression, without linking it to any specific limitations placed upon appellant’s activities, that appellant would “have great difficulty performing the work activities outlined in his job description due to his morbid obesity and orthopedic problems which are aggravated by the weight problem.” He further commented that appellant had also “shown very little desire to improve his fitness by loosing [sic] weight” and offered his opinion that appellant “tends to malinger somewhat with his injuries.”
The investigative record for this case also includes an October 11, 1991, letter from appellant’s psychologist diagnosing appellant as having major depression, generalized anxiety disorder n5 and an unspecified personality disorder. It stated that these conditions “lead to stress, tension, frustration and agitation” and that his prognosis was guarded. It stated that appellant had been hospitalized four times for depression and noted that the agency had had appellant undergo two psychiatric fitness for duty examinations.
In this case, appellant also asserted that on October 29, 1990, he was denied access to an EEO counselor by his supervisor. Appellant’s supervisor averred that she had never denied appellant access to an EEO counselor and that all of his requests to see a counselor were always conveyed to the proper source.
Agency Case No. 4-L-1033-1
On November 23, 1990, appellant received a Notice of Suspension of 14 days for Failure to Maintain a Regular Work Schedule based upon 128 hours of unscheduled absence status that he had incurred from October 16 through November 14, 1990. Appellant’s supervisor averred that the suspension at issue was overturned by an arbitrator and that appellant’s back pay was restored. Further, in its FAD regarding this complaint, the agency indicated that as a result of the arbitrator’s decision appellant’s pay was fully restored and the disciplinary action was removed from all agency records.
Appellant alleged that he was discriminated against when he was denied access to PS Form 256 by his supervisor, in trying to identify his disability and was denied access to the “Handicap Advisory Committee” in attempting to identify an unspecified “barrier.” Appellant’s supervisor averred that she was not aware of what the Form 256 was when appellant asked her for it and that she had no access to such a form. She stated, however, that she sent a note to the Human Resources office inquiring where she could obtain the form, but never received it. She also stated that she did not recall appellant asking to be put in touch with a “Handicap Advisory Committee” and that she was unaware that such a committee existed.
Agency Case No. 4-L-1145-2
With regard to appellant’s assertion that the agency’s posting of the PSDS Supervisor position that required the submission of a PS Form 991 was discriminatory based upon his sex and disability, the Director of Human Resources averred that the application merely requested information concerning the applicant’s education, training, work history and qualifications, and in no way referred to disabling conditions or prohibited individuals with disabilities from applying. She asserted and appellant did not dispute, that he never completed an application for the PSDS Supervisor, EAS-15 posting at issue.
Appellant averred that the agency did not have a program for the hiring, placement and promotion of the disabled, was not accessible to the disabled, did not have a disabled advisory committee, failed to carry out the Fiscal Year 1991 (FY 91) affirmative action program plan and FY 90 accomplishment report for individuals with disabilities, and denied him training opportunities for the PSDS Supervisor position.
The agency indicated that the Postal Service Handbook, EL-307, Guidelines on Reasonable Accommodation, governed the procedures for the employment of the disabled. In its FAD on this complaint, the agency asserted that there are “no barriers which prohibit you from reporting for work or carrying out the duties of your assignment.” The agency asserted that it was not required to establish a “Handicapped Advisory Committee,” but that it did recognize its Handicapped Program as a special emphasis program designed to promote the employment and career development of disabled employees. The agency disputed appellant’s contention that it did not carry out its affirmative action employment program, by producing portions of its FY 91 Affirmative Action Program Plan and FY 90 Accomplishment Report for individuals with disabilities issued on December 28, 1990.
On appeal, appellant inter alia submits a January 8, 1993, letter from a private physician that states he has functional limitations caused by hypertension, thrombophlebitis, as well as knee degeneration, and would require light duty for another 30 days. His stated limitations included no prolonged standing, no more than 10 minutes of walking per half hour, limiting kneeling and bending, and sedentary activity.
ANALYSIS AND FINDINGS
Denial of Hearing
Appellant asserts that the AJ and the EEOC District Director acted erroneously in remanding his complaints to the hearing for the issuance of final agency decisions. However, our review of the record indicates that the AJ and the EEOC District Director acted correctly in remanding appellant’s complaints due to his failure to provide the AJ with the promised written postponement request and medical documentation or to otherwise contact him or the District Office. Even on appeal, appellant does not provide the Commission with medical documentation that shows he was unable to proceed to the hearing or otherwise contact the Commission. The July 6, 1993, letter from appellant’s psychologist uses indefinite and equivocal language such as her statement that appellant was “apparently” rendered “relatively vegetative” to describe appellant’s condition and capabilities during the relevant time period. The January 29, 1993, letter also indicates only that he might not be able to perform well at a hearing. We find these insufficient evidence of appellant’s alleged incapacity to proceed or otherwise contact the Commission. While appellant was out on sick leave during much of the subject time period, he returned to duty in early February, 1993, yet did not contact the Commission at that time. In such a circumstance, an AJ may properly remand a case to the agency for decision on the record. See EEOC Regulation 29 C.F.R. § 1614.109 (d)(3)(v).
Further, the Hill decision upon which appellant relies to support his claim that he was entitled to be given 15-days notice before his complaints were remanded was reached pursuant to Commission Order No. 965, issued January 4, 1982, which has since been revised, inter alia, eliminating this requirement. See EEOC Order No. 960.003, issued July 1, 1991. n6 While the use of failure to prosecute language by the district office in remanding appellant’s complaints would be better suited to an agency procedural rejection, the resultant remand was correct.
Denial of EEO Counseling
Next, we will address appellant’s allegations that he was denied access to an EEO counselor on June 27, and October 29, 1990. (Allegation Nos. 2 and 4). Our review of the investigative record concerning these issues does not reveal that appellant was denied such counseling in retaliation for his EEO activity or in an attempt to restrain him from such future activity. Instead, the record reveals that while the ad hoc EEO counselor was unable to meet with appellant on the specific dates that he requested counseling, he subsequently met with appellant and provided him with the requested counseling. Appellant does not demonstrate the manner in which he has been prejudiced by the foregoing actions or show a prima facie case that his failure to immediately receive such counseling was motivated by retaliatory animus or sex or disability discrimination.
Disability Threshold Determination
Before we address appellant’s allegations of disability discrimination with regard to the remaining issues in his four complaints, we must reach a threshold determination as to whether appellant falls within the protection of the Rehabilitation Act of 1973.
We find that sufficient information presently exists in the record from which we can determine that appellant is a qualified disabled individual within the meaning of the Rehabilitation Act of 1973.
As a threshold matter, one bringing a claim of disability discrimination must first establish that he is a member of the class of persons protected by the Rehabilitation Act of 1973. EEOC Regulation 29 C.F.R. § 1614.203(a)(1) states that an individual with a disability is one who:
(1) Has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment.
Major life activities are functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 29 C.F.R. § 1614.203(a)(3). Upon review of the record, the Commission finds that the medical evidence in the record indicates that appellant’s impairments of morbid obesity and degenerative arthritis of both knees, at least in conjunction, rise to the level of a disability under the foregoing definition. The medical evidence in the record indicates that by the time of the events involved in Agency Case No. 4-L-1028-1, n7 the agency had been placed on notice that due to degenerative arthritis in both of his knees, appellant was precluded from engaging in any prolonged standing. Appellant’s treating physician had also indicated to the agency that appellant should be employed in a sedentary occupation. The record further indicates that appellant’s light duty restrictions concerning his ability to stand had already been in force for several months prior to the facts at issue in this case and that the nature of the term “degenerative arthritis” as utilized by his physician clearly indicated permanency. n8 Further, the agency’s Director of Human Resources admitted that she had been made aware that appellant’s morbid obesity and knee degeneration were related in that one could not be properly treated without alleviation of the other. Based on the foregoing, we find that appellant’s combination of impairments imposed substantial limitations upon his ability to stand and, consequently, upon the major life activity of walking. n9 We also find that the October 11, 1991, letter from appellant’s psychologist, which diagnoses him as having major depression and states he was hospitalized for this four times, is sufficient to establish that he has a mental disability. Therefore, based on all the above, we find that appellant meets the Commission’s definition of an individual with a disability.
Appellant must further prove that he is a qualified individual with a disability, i.e., one who, with or without reasonable accommodation, can perform the essential functions of the position in question. 29 C.F.R. § 1614.203(a)(6). In appropriate circumstances, a determination may be required as to whether an appellant can perform the essential functions of the position without constituting a danger or risk to himself or others. Id. For the purposes of our present analysis, we find that appellant meets the foregoing definition based upon his apparently adequate performance without incident in the position in which he had been afforded light duty by the agency. Therefore, because the evidence shows that appellant is a qualified person with disabilities, he is protected by the pertinent provisions of the Rehabilitation Act.
Next, we will address the merits of each of the remaining allegations of appellant’s complaints individually.
Agency No. 4-L-1050-0
Appellant asserted that, based on his sex and disabilities, he was not selected for the position of General Clerk on June 1, 1990.
Appellant’s claims of discrimination are appropriately examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). In general, for appellant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875 (1984).
Once an appellant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To do so, it must produce evidence of the stated reason for the nonselection that is sufficient to raise a “genuine issue of fact” as to whether discrimination occurred. Burdine, 450 U.S. at 254. Moreover, the agency’s rebuttal must “frame the factual issue with sufficient clarity so that [appellant] will have a full and fair opportunity to demonstrate pretext.” 450 U.S. at 255-256.
If the agency is successful, the burden is on the appellant to demonstrate by a preponderance of the evidence that the agency’s reasons were a pretext for discrimination. Burdine, 450 U.S. at 253. At all times, appellant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983).
The elements necessary to establish a prima facie case are determined by the individual circumstances of each issue and the basis of discrimination alleged. International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 358 (1977), citing McDonnell Douglas, 411 U.S. 802, n. 13. To establish a prima facie case that the agency discriminated against him in a nonselection, appellant may show that (1) he belongs to a protected group; (2) he was qualified for the position; (3) he was not selected for the position; and (4) a person not of his group was selected. Keyes v. Secretary of the Navy, 853 F.2d 1016, 1023 (1st Cir. 1988).
We find, with regard to the nonselection allegation, that appellant has failed to present a prima facie case of intentional discrimination on either of the bases alleged. Specifically, appellant failed to show that he met the initial qualification requirement for the subject position, a passing score on the agency’s 45 NWPM typing examination. Nor has appellant offered any evidence that the subject typing requirement was imposed in order to deprive him of the position based upon his sex and/or disability.
With regard to appellant’s argument that the agency should have waived the typing requirement in order to award him the subject position as a permanent accommodation for his disability, we find that no such waiver was shown to be necessary in order for the agency to reasonably accommodate appellant’s disability. In fact, the record indicates that the agency was accommodating appellant’s limitations in a light duty assignment at the time of his request for the subject position.
Agency Case No. 4-L-1028-1
With regard to this complaint, appellant alleges that he was discriminated against based upon his disabilities when he was informed on August 15, 1990, that he had until November 15, 1990 to lose weight or face a fitness-for-duty examination.
Appellant’s allegation of discrimination concerning the ultimatum he was given by the agency’s Director of Human Resources involves direct evidence of intentional disability discrimination. Specifically, the Director of Human Resources admitted that based upon information she had received concerning appellant’s morbid obesity and his degenerative arthritis, she subjected him to a three-month period of assessment in which she postponed sending him for a fitness for duty examination in order for him to demonstrate “a sincere commitment” to lose weight. No other individual, disabled or otherwise, was shown to have been afforded this form of blatant and unjustified disparate treatment. No legitimate workplace safety concerns that could have served as the basis for the Director’s action in affording appellant the ultimatum to lose weight or face a fitness-for-duty examination were articulated by the Director. In fact, the Director’s willingness to indefinitely postpone appellant’s fitness-for-duty examination on the condition that appellant continue his progress on the diet program he joined as a direct result of her ultimatum clearly undermines the validity of any such professed concerns.
While the Director’s stated intention to help appellant “improve his health” may appear superficially beneficent, such an attitude toward appellant’s disabling condition, when examined more closely, clearly demonstrates discriminatory animus towards appellant’s morbid obesity. This is evidenced by an assumption in the absence of conclusive medical evidence that appellant’s condition is a totally voluntary one that can be cured by him and by the belief that the agency has a legitimate place in forcing appellant to attempt such a cure. However, under the Rehabilitation Act, appellant is entitled to equal treatment with regard to the terms and conditions of his employment regardless of whether he chooses to pursue a particular form of treatment for his disabling condition(s). The agency’s actions in imposing the subject ultimatum violated the Rehabilitation Act by unlawfully altering the terms and conditions of appellant’s employment in a discriminatory manner not similarly imposed upon other employees with or without disabilities. Further, appellant indicates that the agency’s harassing ultimatum forced him to take unnecessary sick and annual leave as a direct result. Restoration of sick and/or annual leave taken as a direct result of discriminatory harassment is recoverable as equitable relief. See Donna Meagher v. Department of Defense, EEOC Appeal No. 01923078 (May 19, 1993) (restoration of sick and annual leave found to be equitable relief for sexual harassment). Therefore, appellant may submit evidence to the agency establishing whether, and in what amount, the agency’s action directly resulted in his taking of such leave. We will also order that the agency provide training for the Director of Human Resources to apprise her of her responsibilities under the Rehabilitation Act of 1973.
Appellant has also requested that he be afforded compensatory damages in the form of reimbursement for the costs he incurred in pursuing the subject diet program because of the Director’s discriminatory ultimatum. However, the Commission notes that the recent decision of the United States Supreme Court in Landgraf v. USI Film Products Et Al., 62 U.S.L.W. 4255 (1994), held that the compensatory damages provision of the Civil Rights Act of 1991 was not to be retroactively applied to pre-Act conduct and would preclude an award of compensatory damages for any acts of alleged discrimination occurring prior to November 21, 1991. The Commission on May 23, 1994, voted not to seek compensatory damages for any violation involving pre-Act conduct.
Agency Case No. 4-L-1033-1
Appellant’s allegation that, based upon his sex, disability, and in reprisal for his prior EEO activity, he received a Notice of Suspension of 14 days for Failure to Maintain a Regular Work Schedule has appropriately been found by the agency to have been fully remedied by the arbitrator’s decision, which afforded appellant full back pay and removed the suspension from all agency records. Appellant does not dispute that he has been afforded such relief. Therefore, this issue is properly found to be moot and will not be discussed further in the present determination. See County of Los Angeles v. Davis, 440 U.S. 635, 631 (1979).
Appellant can initially establish a prima facie case of intentional sex and disability discrimination by demonstrating that he was subjected to adverse employment actions under circumstances which, if left unexplained, would raise an inference of discriminatory motivation. Burdine, 450 U.S. at 253; Furnco Construction Corporation v. Waters, 438 U.S. 567, 579-580 (1978).
Appellant may establish a prima facie case of reprisal by showing that: (1) he engaged in prior EEO activity; (2) the agency was aware that he engaged in prior EEO activity; (3) he was subsequently adversely affected by an action of the agency; and (4) the action in question followed his prior EEO activity within such a period of time as to infer reprisal motivation. See Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass. 1976), aff’d., 545 F.2d 222 (1st Cir. 1976).
Appellant has further alleged that he was discriminated against when he was allegedly denied access to PS Form 256 by his supervisor, in trying to identify his disability and was denied access to the “Handicap Advisory Committee” when he was trying to identify an unspecified barrier. However, appellant has not provided evidence sufficient to draw an inference of sex, disability or reprisal discrimination with regard to these alleged agency actions. Even if we were to find that such an inference has been shown, the agency has, in each instance, articulated legitimate, nondiscriminatory explanations, which have not been proven by appellant to be pretexts for discrimination. Appellant’s supervisor averred that she was not aware of what the Form 256 was when appellant asked her for it and that she had no access to such a form. She stated, however, that she sent a note to the Human Resources office inquiring as to where she could obtain the form, but never received it. She also stated that she did not recall appellant asking to be put in touch with a “Handicap Advisory Committee” and that she was unaware that such a committee existed. None of these explanations for the agency’s alleged actions have been shown by appellant to afford sufficient support for a finding of discrimination or retaliation.
Agency Case No. 4-L-1145-2
In the subject complaint, appellant asserted that based on his sex and disabilities he was discriminated against by the agency when it posted a Supervisor, PSDS, EAS-15 vacancy, which required the submission of a PS Form 991, failed to have a program for the hiring, placement, and promotion of the disabled, was not accessible to the disabled, did not have a disabled advisory committee, failed to carry out the FY 90 affirmative action program plan and FY 90 accomplishment report for individuals with disabilities, and denied him training opportunities for the PSDS position.
After a careful review of the record, we find that appellant has failed to meet his initial burden of presenting a prima facie case of sex or disability discrimination with respect to each of the foregoing allegations. In each instance, appellant failed to offer further elaboration or evidence to support his charge against the agency. However, the agency refuted each of appellant’s allegations. Specifically, with regard to appellant’s allegation concerning the PSDS vacancy posting, the Director of Human Resources averred that the application merely requested information concerning the applicant’s education, training, work history and qualifications, and in no way referred to [ILLEGIBLE WORD] conditions or prohibited individuals with disabilities from applying for positions. She asserted, and appellant did not dispute, that he never completed an application for the PSDS Supervisor, EAS-15 posting at issue.
With regard to appellant’s remaining allegations, the agency indicated that the Postal Service Handbook, EL-307, Guidelines on Reasonable Accommodation, governed the procedures for employment of the disabled. In its FAD, the agency asserted that there are “no barriers which prohibit you from reporting for work or carrying out the duties of your assignment.” Our review of the record further indicates that appellant has not yet elaborated concerning the nature of the barriers that he alleges are imposed by the agency. The agency has also asserted, without contradiction, that it was not required to establish a “Handicapped Advisory Committee,” but that it did recognize its Handicapped Program as a special emphasis program designed to promote the employment and career development of disabled employees. Finally, the agency has disputed appellant’s contention that it did not carry out its affirmative action employment program, by producing portions of its FY 91 Affirmative Action Program Plan and FY 90 Accomplishment Report. None of appellant’s assertions provide sufficient support for an inference of discrimination to be drawn regarding the foregoing issues.
On appeal, appellant also asserted that the agency denied his requests for official time at home, which he said he needed to put his investigative files and legal research materials in order. He estimated that this would take “some months” and that he could not proceed with a hearing until he did this. EEOC Regulations require that an agency provide a complainant with “a reasonable amount of official time, if otherwise on duty to prepare the complaint and to respond to agency and EEOC requests for information.” 29 C.F.R. § 1614.605(b). We do not find that appellant’s request falls within the scope of this regulation and thus we do not find any error by the agency in denying his request.
CONCLUSION
Based on our review of the evidence, the decision of the Commission is to AFFIRM in part and REVERSE in part the agency’s final decision finding no discrimination in EEOC Appeal No. 01933285 (Agency case No. 4-L-1028-1). The agency is therefore directed to take the steps contained in the following ORDER. The agency decisions in the remaining appeals (EEOC Appeal Nos. 01933281, 01933282, and 01933284, Agency case Nos. 4-L-1050-0, 4-L-1145-2, and 4-L-1033-1) are AFFIRMED.
ORDER
The agency is ORDERED to take the following remedial action:
(A) The agency shall take all necessary actions in order to ensure that the discriminatory ultimatum imposed by the Director of Human Resources upon appellant does not recur.
(B) The agency shall provide training for the Director of Human Resources regarding her responsibilities under the Rehabilitation Act, including refraining from imposing such ultimatums.
(C) The agency shall provide appellant with restoration of any sick or annual leave that he can demonstrate was taken as a direct result of the discriminatory ultimatum.
(D) The agency is ORDERED to post at its Springfield, Illinois facility copies of the attached notice. Copies of the notice, after being signed by the agency’s duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within ten (10) calendar days of the expiration of the posting period.
(D) The agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented.
Notes:
1 Appellant also filed a July 11, 1990 formal complaint in which he alleged that he was discriminatorily subjected to a job discussion concerning two incidents of sick leave usage based on his disabilities (mental and physical). This complaint was rejected by the agency for failure to state a claim in the final decision that accepted appellant’s July 26, 1990, complaint for processing. The Commission remanded the July 11, 1990, complaint to the agency for a supplemental investigation and continued processing in EEOC Request No. 05910665 (September 12, 1991). Appellant asserts, on appeal, that the agency has not yet fully complied with the Commission’s decision. In this regard, appellant is advised that the matter of the agency’s compliance with EEOC Request No. 05910665 is not at issue herein. Appellant is advised to contact the Compliance Officer assigned to that case if he believes that additional compliance action is warranted.
2 Appellant was also informed that if he wished to temporarily withdraw his request for a hearing for medical reasons and without prejudice to renew it at a later date, he needed to submit a letter so stating “right away.” While appellant agreed to do so, no such letter was submitted.
3 The agency’s final decision regarding Agency Case Nos. 4-L-1078-1 and 4-L-1081-1 were also appealed by appellant to the Commission and were the subject of EEOC Appeal No. 01933283 (February 15, 1994), which is presently pending before the Commission on a request for reconsideration. In EEOC Appeal No. 01933283, the Commission found that appellant was not entitled to a remand for an administrative hearing and that appellant had not been discriminated against by the agency.
4 Appellant characterized this physician as being employed by the agency, and the agency has not disputed this assertion.
5 The Diagnostic and Statistical Manual of Mental Disorders, Third Edition, Revised (DSM-III-R) defines major depression as including such daily symptoms as depressed mood, markedly diminished interest in activities, insominia or hypersomnia, weight loss or gain, restlessness, fatigue, feelings of worthlessness or guilt, diminished concentration or indecisiveness, and recurrent thoughts of death. DSM-III-R (American Psychiatric Association, 1987), p. 222. Generalized Anxiety disorder is defined as having the essential feature of “unrealistic or excessive anxiety and worry” about life circumstances. DSM-III-R, p. 251.
6 While we note that Appendix A, Section 7(b) of Order 960.003 (The Administrative Judge’s Handbook) suggests that notice to the parties should be a prerequisite to a remand “in most instances,” we find that the circumstances of the present case, which involved appellant’s failure to either produce a promised request for a continuance and medical documentation by a date certain or to otherwise contact the Commission, even after he returned to work at the agency, indicate that the Commission’s remand was appropriate.
7 We reach this finding based upon the facts involved in Agency Case No. 4-L-1028-1, the complaint on which we find intentional disability discrimination in the present decision. However, we also find that the record herein indicates that the agency was made aware of the pertinent medical documents as of the date of the earliest event involved herein, the agency’s June 25, 1990 denial of appellant’s request to waive the typing requirement of the General Clerk position (Agency Case No. 4-L-1050-L) Therefore, we will assume, for purposes of our analysis in this decision, that appellant has met this threshold showing with regard to his other complaints addressed herein.
8 The later fitness for duty examination report completed by the agency’s contracted physician also supports the conclusion that appellant’s restrictions were permanent, related to his morbid obesity, and substantially limiting, as does the additional medical statement submitted on appeal.
9 We also note that they substantially limit his ability to work in any type of non-sedentary type of position, thereby precluding him from working in a broad range of jobs in various classes. See Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986); Mansell v. Dep’t. of the Air Force, EEOC Appeal No. 01891189 (June 15, 1993).