Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 90 C 2416--Harold A. Baker, Judge.
Before CUDAHY and COFFEY, Circuit Judges, and WALTER, District Judge. *fn*
DECIDED NOVEMBER 14, 1995
Wendell Tyler filed a complaint seeking declaratory relief and monetary damages arising from the allegedly discriminatory conduct of the United States Postal Service, in violation of the Rehabilitation Act of 1973 (The Act), sec. 501. 29 U.S.C. sec. 791, et seq. Although Tyler alleged a violation of sec. 501 of the Act, he brought his claim pursuant to sec. 504 of the Act. 29 U.S.C. sec. 794. Tyler alleged that the Postal Service refused to provide him with training for a window clerk position because of his mental illness (paranoid schizophrenia). The defendant filed a motion to dismiss Tyler's claim for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to state a claim upon which relief could be granted, Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment. Because the defendant also submitted matters outside the pleadings in support of his 12(b)(6) motion, such as exhibits, depositions, and affidavits, the court treated the motion as a cross motion for summary judgment, pursuant to Fed. R. Civ. P. 12(b). The district court entered summary judgment in favor of the defendant, finding that Tyler's failure to contact an Equal Employment Opportunity (EEO) counselor within thirty days of the allegedly discriminatory event, as required by 29 C.F.R. sec. 1613.214(a)(1)(i), barred his claim. Furthermore, even if he had contacted the counselor in a timely manner, he failed to set forth a genuine issue of material fact in support of his discrimination claim.
Tyler appeals. We affirm.
On July 29, 1987, Wendell Tyler applied for a position at the Rantoul, Illinois Post Office and was interviewed for a job on September 30, 1987. On his application, Tyler disclosed that he had been diagnosed as a paranoid schizophrenic and had undergone both in-patient and out-patient treatment for his condition since 1981. Two months later, on November 30, 1987, Tyler received a letter from Dr. Alfred D. Klinger, the South Suburban Postal Division Medical Officer, informing him that he would have to provide him with "an up to date evaluation of [his] condition by a psychiatrist or psychologist or psychiatrist social worker" before he could make a decision regarding Tyler's potential employment with the Postal Service.
Tyler failed to respond to Dr. Klinger's request and on December 30, 1987, Klinger filed a report with the Office of Personnel Management stating that "based on the incomplete information available [in Tyler's application], Mr. Tyler would have to be considered a moderate medical risk insofar that he would have a problem working with others." On that same day, Tyler, unaware of Dr. Klinger's preliminary recommendation, filed a formal complaint with the Equal Employment Opportunity Commission (EEOC) claiming that the Postal Service was discriminating against him on the basis of his mental handicap. The plaintiff alleged that Dr. Klinger was unnecessarily delaying his decision on whether or not to hire him and that he had no current medical records available because he was no longer under a doctor's care.
On February 26, 1988, Dr. Klinger filed a final report concerning Tyler's condition with the Postal Service's Office of Personnel Management. Since his initial assessment of Tyler on December 30, 1987, Dr. Klinger had received a copy of Tyler's medical files from the Veterans' Administration *fn1 which detailed his treatment from September, 1984 through January, 1988, for paranoid schizophrenia. Klinger noted in his report that Tyler was
given a preemployment examination by Dr. R.E. Samuelson, *fn2 Springfield, IL, on 10/19/87. He described Mr. Tyler as paranoid schizophen[ic] with visual and auditory hallucinations associated with paranoid ideation. He felt Mr. Tyler was a high risk because of this but did not go into any other detail on how this might affect his duty as a [postal] clerk.
Based on this information, Dr. Klinger concluded:
[I]t is my opinion that Mr. Tyler would have a great deal of difficulty working with the public, administrators and other personnel. His moments of paranoia could lead to unpleasant and frightening confrontations which could affect essential functions of his job and the Postal Service in general. It is possible if he were to be on continuous medication and under strict medical supervision he could function adequately. Given his actions in the most recent past [in refusing to remain on medication], I am not optimistic that this can be brought about. I conclude that Mr. Tyler is at least a moderate medical risk and could very well be a high medical risk.
The Postal Service advised Tyler by letter on March 10, 1988, that he was medically unsuitable for postal employment.
On February 17, 1989, the Postal Service entered into a settlement agreement with Tyler concerning his EEOC discrimination complaint. According to the terms of the agreement, the Postal Service paid Tyler a lump sum of $5000, minus state and federal taxes, and agreed to hire him at the Rantoul, Illinois Post Office, where he began employment later that month as a "distribution and window clerk." *fn3 Although mail carrier duties were generally not part of Tyler's job description, Harry N. Lewis, the Postmaster at Rantoul testified that because Rantoul was such a small post office, clerks often delivered mail in addition to clerking jobs in order that they would be ensured a forty hour work week. Tyler, the most junior employee at the Rantoul Post Office, performed carrier duties as needed and also performed distribution functions. During his deposition, Tyler confirmed that before he began working at the post office, he was informed that he would have to perform carrier duties on occasion, in order to work a full forty hour week.
Dissatisfied with his mail carrier duties, Tyler requested that his discrimination complaint be reinstated on May 1, 1989, claiming that the Postal Service breached the terms of the settlement agreement when it required him to perform carrier duties and in withholding federal and state taxes from his lump sum settlement, paying him only $3,452.50, instead of the agreed-upon $5,000. On May 16, 1989, the Postmaster General of the South Suburban Division of the Postal Service issued the Service's final agency decision, rejecting Tyler's request to reinstate his complaint, finding that Tyler was appointed to be a part-time flexible clerk, as provided for in the agreement, and that withholding $1547.50 in taxes from his lump sum payment was appropriate because the $5000 was taxable income. Tyler appealed this decision to the EEOC.
While the EEOC was reviewing Tyler's claim that the Postal Service had breached the settlement agreement, the plaintiff sent a letter to Peter McGow, the Officer in Charge at the Rantoul Post Office, on August 24, 1989, requesting that he provide Tyler with window training within 10 days, in order that the plaintiff might be transferred to a window clerk position. McGow responded to Tyler's request by letter, dated August 30, 1989, and notified him that his request for window instruction was denied:
As far as window duties training, at this time, for you within 10 days, as you have officially notified us, please be advised, that will not be accomplished. Training will be given for all work functions that you will be expected to perform as best meets the needs of the service. At this time the Rantoul Office has a sufficient No. [number] of window clerks and relief personnel to meet its ...