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HUSOWITZ v. RUNYON

October 15, 1996

JOSEPH HUSOWITZ, Plaintiff, against MARVIN T. RUNYON, Postmaster General, UNITED STATES POSTAL SERVICE, Defendant.


The opinion of the court was delivered by: BOYLE

 BOYLE, United States Magistrate Judge.

 In May 1992, the plaintiff pro se, Joseph Husowitz, commenced this employment discrimination action, pursuant to the Rehabilitation Act of 1973, see 29 U.S.C. § 794 (the "Rehabilitation Act" or "Act"). According to the complaint, the plaintiff alleges that he was unlawfully suspended by the United States Postal Service ("Postal Service" or "defendant") on April 3, 1991, because of his mental disability. However, the relief sought by the plaintiff, as clarified at the trial, does not include reinstatement to his former position since the Postal Service permitted the plaintiff to return to work in May 1992. Plaintiff remained employed by the Postal Service until February 1996, when he was terminated. It is undisputed that during the period of suspension the plaintiff received his regular pay and suffered no loss of seniority rights.

 In the complaint, the plaintiff claims that: the Postal Service discriminated against him on the basis of his mental disability by permitting colleagues "to engage in a continuing pattern of harassment" which resulted in (1) the plaintiff's involuntary suspension from duties, with pay; (2) mandatory counseling sessions; (3) hypercritical supervision; and (4) denial of access to post office facilities and equipment required for the plaintiff to perform his duties.

 The parties consented to a trial before me, pursuant to 28 U.S.C. § 636(c), and this opinion constitutes my findings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure.

 BACKGROUND

 By December 1989, however, the bi-polar disorder caused Mr. Husowitz' condition to worsen and he became noticeably depressed, irritable, and outspoken (Tr. 26-27). On December 26, 1989, Mr. Husowitz suffered a severe "depressive episode;" one of the side-effects caused by bi-polar disorder. He sought the assistance of then Farmingdale Postmaster, William J. Maynes, who immediately arranged to have union shop steward, Peter Furgiuele, drive the plaintiff to the Veterans Administration Hospital located in East Northport, New York for treatment (Tr. 27, 166, 384, 514). *fn2" At the time, Mr. Maynes was unaware that the plaintiff had been previously diagnosed with bi-polar disorder (Tr. 27).

 Mr. Husowitz remained hospitalized for five months under the continued care of Dr. Anthony Pelosi, the psychiatrist who had been treating him since 1987 (Tr. 29-30, 449). Dr. Pelosi regularly conducted counseling sessions and prescribed lithium carbonate, a drug generally regarded for minimizing the reoccurrence of bi-polar episodes (Tr. 449, 452-53, 462).

 In May 1990, Mr. Husowitz received medical clearance from the Postal Service's medical unit to return to work (Tr. 30-31). It was at this time that Postmaster Maynes learned of Mr. Husowitz' disability because the plaintiff was required to "submit medical evidence of [his] ability to work with or without limitations" Defendant's Exh. I; (Tr. 30). *fn3" The record is devoid of any evidence that there were any limitations placed on the plaintiff's ability to resume his regular duties.

 Initially, Mr. Husowitz' transition back to work progressed smoothly (Tr. 31). Shortly following his return, the plaintiff was awarded a position as a Level VI Postage Due (Business Reply) Technician (Tr. 328, 384-85). *fn4" The Postal Service expressed no immediate concerns about the plaintiff's ability to perform his new duties which included "distributing, weighing, computing and processing all classes and types of postage due mail" in addition to providing technical assistance and guidance to other employees on the work area floor. Defendant's Exh. B.5

 Unfortunately, the situation rapidly deteriorated by January 1991. Louis Pelligrino, Mr. Husowitz' supervisor, had received complaints from as many as seven Postal Service employees *fn6" regarding inadequate performance by Mr. Husowitz. These complaints ranged from incidents of alleged harassment and verbal threats to the plaintiff's inability to perform his duties (Tr. 32-33, 170, 277, 355). As a result, Mr. Pelligrino began to monitor Mr. Husowitz on a daily basis.

 The Postal Service offered into evidence the job description for Postage Due Technicians. Defendant's Exh. B. Included within the section, entitled "Duties and Responsibilities," are the following provisions:

 
6. When acting as leader of other employees, [the Postage Due Technician] provides technical direction covering such matters as their recording and completion of postage due statements, rates to be applied, recording in trust accounts and similar policies, procedures and regulations.
 
7. When acting as a leader of other employees, in accordance with general and specific directives of the supervisor, ... supplies leadership necessary to secure maximum interest and effort from the employees: promotes harmony and cooperation.

 Defendant's Exh. B (emphasis added.).

 Mr. Pelligrino testified that he personally found the plaintiff's "rudeness, his being abrupt, his disobeying my orders, his leaving the work room floor without authorization, his constant denial, [and] complaints from other clerks" to be a significant distraction (Tr. 354-55). Mr. Pelligrino attributed Mr. Husowitz' conduct to the plaintiff's "unusual behavior" which included episodes of loud singing, playing the radio at excessively high volumes, procrastination, disturbing co-workers, and other instances of misconduct and insubordination (Tr. 397-406).

 Other employees were also distracted by the plaintiff's behavior. In January or February 1991, Supervisor Pelligrino temporarily re-assigned Diane Digons to other working areas during the morning shift so that she would not be disturbed by Mr. Husowitz (Tr. 388). William Lamb, the employee responsible for training Mr. Husowitz for the Postage Due Technician position, also testified that Mr. Husowitz was "loud and abusive" and on one occasion the plaintiff told his co-worker that he "wished Mr. Lamb were dead" (Tr. 232-35, 245).

 On March 21, 1991, based on discussions with Supervisor Pelligrino, consultations with the Labor Relations Department, and his own personal observations, Postmaster Maynes referred Mr. Husowitz to the Employee Assistance Program ("EAP") because of his "negative attitude change" (Tr. 44-45, 65, 70, 72, 188). Mr. Maynes testified that the referral was not considered disciplinary action because the plaintiff's participation in the program, excluding the initial meeting, "was purely voluntary" (Tr. 130, 132); Defendant's Exh. F.

 Section 872.42 of the Postal Service Employee Labor Relations Manual (safety and health) Issue 12, provides that, "Postal managers and supervisors who have identified employees with apparent alcohol or drug-related employment problems are responsible for referring such employees to the [EAP] program" Defendant's Exh. F. Although this provision does not expressly authorize the referral of employees for matters unrelated to suspected drug or alcohol abuse, Daniel Reardon, former Supervisor of the EAP program, testified that the program regularly accepted referrals for problems other than those involving drugs and alcohol (Tr. 316). Mr. Reardon further testified that while the agency specialized in alcoholism and drug addiction, all other problems were referred to outside agencies (Tr. 322-24). *fn7"

 Three days after the EAP meeting, Mr. Husowitz reported to work playing his radio at a very-high volume (Tr. 397). Mr. Pelligrino instructed the plaintiff to use headphones so that he would not disturb the other employees within the post office. In spite of the supervisor's instructions, Mr. Husowitz continued to play the radio "super loud" without headsets, and each time he was asked to lower the volume, Mr. Husowitz would begin to sing aloud (Tr. 397-98).

 Later that morning, Mr. Husowitz accused Mr. Pelligrino, who was then the Supervisor of Mails & Delivery, of withholding his pay check. (Tr. 399-400). After receiving his check "approximately two hours" after his colleagues, Mr. Husowitz sought Mr. Pelligrino and demanded that he receive all future pay checks at the same time as the other distribution clerks (Tr. 399-400, 426). Postmaster Maynes testified that it was Mr. Robert Lorch's responsibility as Supervisor of Administration to distribute the plaintiff's pay check because at the time, Mr. Husowitz was reporting to both Supervisors Pelligrino and Lorch (Tr. 400); Defendant's Exh. E. The court does not credit plaintiff's testimony that the late check resulted from deliberate misconduct on the part of Mr. Pelligrino or any other postal employee.

 On March 31 and April 1, 1991, Mr. Husowitz posted and distributed two different notices throughout the Farmingdale Post Office detailing the pay check incident from the previous week and warning the Postal Service that future acts of discrimination would result in his filing of a lawsuit (Tr. 426-28); Defendant's Exhs. II and NN. The plaintiff's letter, dated April 1, 1991, which Mr. Husowitz also sent to Postmaster Maynes, states, "Lou [Supervisor Pelligrino], I am telling you that I want my pay check handed to me as quickly as you hand it to other clerks in distributing. I do not want excuses, I want my pay check. I will remind you again prior to the next pay period. Joe Husowitz" Defendant's Exh. II. This letter followed the plaintiff's general notice that had been posted near the employee's time clock two days earlier. That notice provided:

 To Mr. Maynes/Staff,

 
Effective immediately, all acts, subtle or otherwise, of harassment, discrimination, or attempts to stigmatize me, in any way, shape, or form will not be tolerated.
 
However, these acts will be documented and used against you and your staff as evidence for the purpose of taking legal action against you at some future date.
 
In Clear Good Conscience
 
s/Joseph Husowitz

 Defendant's Exh. NN.

 On April 3, Mr. Pelligrino observed the plaintiff using the telephone in the registration area, a section of the Post Office designated for authorized personnel only (Tr. 402); Defendant's Exh. E. After instructing. Mr. Husowitz to use the telephone ...


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