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.