John A. Wilsonv.United States Postal Service 01986496 12-13-00 . John A. Wilson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 13, 2000
01986496 (E.E.O.C. Dec. 13, 2000)

01986496

12-13-2000

John A. Wilson v. United States Postal Service 01986496 12-13-00 . John A. Wilson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John A. Wilson v. United States Postal Service

01986496

12-13-00

. John A. Wilson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01986496

Agency No. 4-J-604-1156-96

DECISION

INTRODUCTION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the agency

concerning his claim that the agency violated the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791 et seq.<0> The appeal is accepted by

the Commission in accordance with 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

the complainant based on disability (alcoholism) when he resigned in

lieu of termination.

BACKGROUND

The complainant filed a formal complaint in February 1997 in which he

raised the issue identified above. Following an investigation, the

complainant did not request a hearing and the agency issued a final

decision (FAD) dated July 16, 1998, finding no discrimination. It is

from this decision that the complainant now appeals.

During the period in question, the complainant was employed as a

Mailhandler at the agency's Morraine Valley facility in Oak Park,

Illinois. The complainant states that his problems with alcohol began

in the mid-1980s, and it is apparent from the record that various

treatments he sought for the problem were unsuccessful.<0> On July 21,

1995, the complainant's supervisor (the Responsible Official, RO) smelled

alcohol on his breath and sent him for a fitness test. The test revealed

that the complainant had been drinking, and he was thereafter issued a

Notice of Seven-Day Suspension on July 28, 1995. The complainant was

subsequently issued a Notice of Fourteen-Day Suspension on August 11,

1995, for failing to maintain a regular schedule based on approximately

12 unscheduled absences since April of that year.

On September 27, 1995, the complainant entered into agreements whereby

both suspensions were reduced in exchange for his participation in the

Employee Assistance Program and his agreement that, for the next year,

he would not exceed more than five unscheduled absences. By March

1996, however, the complainant had accumulated more than five such

absences and he was informed by the RO that he was going to be removed.

The complainant was thereafter offered the alternative of submitting his

resignation in lieu of termination, and he did so effective April 4, 1996.

In support of this action, the RO cited the fact that the complainant had

violated the September 1995 agreements by accumulating more than five

unscheduled absences. The RO also stated that management had afforded

the complainant every opportunity to seek help and correct his problem.

In support of his claim, the complainant states, in effect, that the

agency should have accommodated his alcoholism by referring him for

further treatment. In this regard, he cites two co-workers who had

alcohol-related attendance problems who were referred to an agency

counseling program in lieu of termination.

ANALYSIS AND FINDINGS

The Commission initially notes that the agency found that complainant was

not an individual with a disability as defined by the Rehabilitation Act.

The Commission is troubled by this conclusion given complainant's history

of long-term alcohol problems, including entering a rehabilitation program

on three occasions and consuming 20 beers per day. Nevertheless, we find

that it is not necessary to address this issue, given that complainant

has not met his ultimate burden of establishing discrimination.

In this case, it is not apparent that the absences which culminated

in the complainant's resignation were related to his alcohol problem.

Furthermore, even assuming that they were related, employers are permitted

to hold employees who are alcoholics to the same qualification standards

for employment or job performance and behavior as other employees. 29

C.F.R. � 1630.16(b)(4). This is true even if the misconduct or

unsatisfactory performance is related to the employee's alcoholism. Id.

Consequently, we find that the agency was not required to excuse the

complainant's absences. See Woods v. Social Security Administration, EEOC

Petition No. 03970060 (June 19, 1997).<0> Accordingly, the Commission

finds the complainant has not established that the agency discriminated

against him based on disability.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that he was discriminated against as

alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

__________________________________

Frances M. Hart, Executive Officer

Executive Secretariat

12-13-00

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify

that the decision was mailed to claimant, claimant's representative

(if applicable), and the agency on:

_________________________

Date

_________________________

01 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

02 These included Program for Alcoholic Recovery, Alcoholics Anonymous,

and a program identified by the complainant as Program SUPRA.

03 In so finding, we note that we have previously held that the 1992

amendments to the Rehabilitation Act are inconsistent with an employer's

obligation to provide a �firm choice� between removal and treatment in

a rehabilitation program. Johnson v. Department of the Interior, EEOC

Petition No. 03940100 (March 28, 1996). Therefore, the Commission's

position is that an employer is not required to provide an individual

with a �firm choice� prior to removing him/her for alcohol-related

misconduct.