0120110537
09-26-2012
Jarnail S. Chahal, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Jarnail S. Chahal,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110537
Hearing No. 550-2009-00364X
Agency No. 4F-945-0064-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 28, 2010 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Post Office in Concord, California. On July 10, 2008, Complainant entered into a Last Chance Agreement (LCA) wherein he agreed that he would maintain "regular attendance" defined as "no [absences without leave or AWOL], and no more than two unscheduled absences, including tardies, or 24 hours of unscheduled leave" during the 12 months following his return to duty. The LCA provided that Complainant's failure to maintain regular attendance would constitute just cause for his removal from employment. Further, the LCA stated that Complainant was required to provide acceptable medical documentation for any absence on the day of his return to work and that medical statements such as "under my care," "received treatment" and "the patient states" were not acceptable as evidence of his incapacitation or inability to perform his duties.
On July 28 and 29, 2008, Complainant called in sick. Upon returning to work, Complainant provided his supervisor (S1) a leave slip for 8 hours of sick leave and 8 hours of leave without pay (LWOP). Complainant submitted documentation stating that that he had been "seen" in the doctor's office and that he "has been ill." Initially, S1 approved the leave; however, the next day S1 informed Complainant that the request had been disapproved as the submitted documentation was inadequate under the terms of the LCA. Complainant submitted new documentation later, but the leave request was denied as untimely and Complainant was charged AWOL.
On December 4, 2008, Complainant was injured in a car accident, resulting in him missing four days of work from December 5-10, 2008. Complainant timely notified the Agency and provided medical documentation. Nonetheless, on December 18, 2008, Complainant was notified that he was being removed from duty for violating the LCA.
On April 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and in reprisal for prior protected EEO activity when on December 18, 2008, he was issued a Notice of Removal for Violation of Step B Decision and Violation of Last Chance Agreement.1 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ issued a decision without a hearing on September 23, 2010.
In the decision, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination and reprisal and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was terminated solely for violating the LCA. The AJ determined that the LCA clearly spelled out that the Agreement would be violated if Complainant's unscheduled absences during the relevant time period exceeded 24 hours, and it was beyond dispute that Complainant was terminated after accumulating 48 hours of unscheduled leave during the pendency of the Agreement.
Complainant argued that his extensive use of sick leave should have been recognized by the Agency as an aberration and addressed by evaluation and engaging in the interactive process. The AJ concluded that there was no evidence in the record that Complainant sought a reasonable accommodation in order to perform the essential functions of his job. Further, none of Complainant's submitted medical documentation mentioned any need for accommodation. The AJ determined that in light of Complainant's and his health care providers' silence concerning his alleged need for a reasonable accommodation, there was insufficient evidence to conclude that the Agency should have been on notice of the need to provide any accommodation.
The AJ found that Complainant had presented no evidence establishing that the Agency's reasons were pretextual. As a result, the AJ held that Complainant had not been discriminated or retaliated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing. Complainant alleges that the Agency knew of his disability and failed to accommodate him. Further, Complainant argues that the Agency actually terminated him out of frustration with his illness since the absences should not have counted against him under the LCA. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
As an initial matter, the Commission notes that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, the Commission applies the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability;" (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for the adverse employment action. In order to satisfy his burden of proof, Complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for disability discrimination. Id.
In the instant case, the Commission will assume, without so finding, that Complainant is an individual with a disability and has established a prima facie case of discrimination. The Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. More specifically, the LCA required Complainant to maintain an acceptable level of attendance. The LCA defined regular attendance as "as no AWOLs, and no more than two unscheduled absences, including tardies, or 24 hours of unscheduled leave during the 12 months following the date of [his] return to duty, or in the twelve-month period thereafter." ROI, at 125. Further, the LCA provided that Complainant would present acceptable documentation for any unscheduled absences upon his return to work. Id. The LCA added that statements such as "under my care" and "received treatment" would not be acceptable. Id.
Complainant's supervisor (S1) affirmed that the LCA was very clear that Complainant had to maintain satisfactory attendance. ROI, at 97. Complainant took two days of unscheduled sick leave in July 2008, and submitted documentation in support of the absences stating that he "was seen in this office" and that he had "been ill and unable to attend work." Id. at 73. The documentation was deemed unacceptable under the terms of the LCA and Complainant was charged AWOL. For purposes of the LCA, the absence constituted one unscheduled absence and 16 hours of unscheduled leave. Later, in December 2008, Complainant was involved in a car accident and was out for 4 days, totaling 32 hours of unscheduled leave. Id. at 97, 118. S1 determined that Complainant had accumulated more than 48 hours of unscheduled leave and had therefore violated the LCA. Id. at 98, 116-119. As a result, S1 issued Complainant the Notice of Removal.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for unlawful discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
Complainant contended that he submitted acceptable medical documentation, and his absences should not have counted against the LCA. The LCA provided, however, that Complainant would not accumulate more than 2 unscheduled absences or more than 24 hours of unscheduled leave. There is no dispute that Complainant's July 2008 and December 2008 absences were not approved in advance. Further, Complainant claimed that the July 2008 sick leave should have been covered by the Family Medical Leave Act (FMLA). The LCA excluded FMLA leave requested and approved under the Agency's rules and policies; however, there is no evidence in the record that Complainant properly requested FMLA leave.
Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's protected classes were factors in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated or retaliated against as alleged.
Denial of a Reasonable Accommodation
Finally, to the extent that Complainant may be alleging that he was denied reasonable accommodation, under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). For purposes of analysis, the Commission shall assume, without so finding, that Complainant is a qualified individual with a disability.
Complainant argued that the Agency should have recognized that he needed to be accommodated and engaged in the interactive process with him. The Commission finds that the record is devoid of any evidence that Complainant requested a reasonable accommodation or that it was obvious to the Agency that he may have needed an accommodation. Notably, none of the submitted medical documentation in the record mentioned any need for an accommodation. When an individual's disability or need for reasonable accommodation is not obvious, and the individual fails to provide reasonable documentation requested by the employer, the employer will not be held liable for failure to provide the requested accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, Question 6 (as revised Oct. 17, 2002). Accordingly, the Commission finds that Complainant has not demonstrated that he was denied reasonable accommodation.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 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. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 26, 2012
Date
1 On July 6, 2009, Complainant attempted to amend his complaint to allege that Agency officials interfered with his unemployment insurance. The Agency determined the claim was a collateral attack on the proceedings of another forum and dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant does not raise any challenges to the dismissal on appeal; therefore, the Commission declines to address this claim in the instant decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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