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U. S. DEPARTMENT OF LABOR Employees Compensation Appeals Board In the Matter of MICHELLE ALLAN and U.S. POSTAL SERVICE, POST OFFICE, St. Petersburg, FL Docket No. 02-715; Submitted on the Record;

On October 8, 2000, the United States Postal Service (USPS) denied appellant's notice. The postal judge ruled that, under FLEA, appellant was, in fact, discharged from service because a written warning had been filed in the relevant case. Petitioner, now 48, who left her position as custodian on August 28, 2002, filed her notice on August 28, 2002. The postal judge ruled that because appellant had been subject to a written warning, the postal judge's decision should not have been influenced by that warning, and that her notice should have been denied. Appellant then filed an appeal. The Court of Appeals subsequently stayed the decision in the postal case pending a determination of whether a finding of a psychological disorder may be deemed a disability under the Rehabilitation Act. On March 12, 2001, in a 5-3 decision, the United States Court of Appeals for the Seventh Circuit concluded that a finding of a psychological disorder can constitute a disability under the Rehabilitation Act. The Seventh Circuit reasoned that, because there is no definition in the Act that would be applicable to appellant's situation, a subjective finding of “psychological disorder” was to be considered a finding under the law. In concluding that the psychological disorder must have occurred in the course of appellant's employment, the Seventh Circuit relied upon the fact that a notice was filed in the postal case, and on several cases holding that a finding of a psychological disorder, if subjective, constitutes a disability under the ADA. The issue of whether psychological disorder may constitute a psychological discrimination claim under the ADA is important because the law contains very specific requirements for demonstrating disability, and the Supreme Court has interpreted the ADA narrowly to ensure that persons with disabilities are not discriminated against in employment. There is no dispute that the Postal Service has engaged in unlawful discrimination against appellant since the Postal Service denied her notice and subsequently revoked her employment. Therefore, the Postal Service is not required to provide accommodation to her because she has not failed to establish any fact of a physiological or psychological disability. However, the Postal Service could be required by the ADA to provide reasonable accommodations for its employees and applicants when it acts with discriminatory intent under Section 501(b) of the Civil Rights Act of 1964, as amended. However, this Court disagrees with the Seventh Circuit's conclusion that, by engaging in discriminatory acts in the course of employment, the Postal Service is immune from suit under the ADA. I.

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