0320090011
01-23-2009
Joseph W. Martinez, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph W. Martinez,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090011
MSPB No. CH-0752-08-0566-I-1
DECISION
On December 11, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In a mixed case appeal dated June 3, 2008, petitioner alleged that the
agency discriminated against him on the basis of disability (anxiety,
sleep disorder and cocaine addiction) when, effective May 3, 2008, the
agency removed him from Federal employment for violating a last chance
agreement.
The agency stated that it removed petitioner for violating the last of
four successive last chance agreements pertaining to irregular attendance
and unscheduled absences. The record contains four agreements dated
between December 16, 2005 and January 18, 2008. Paragraph 7 of the
January 18, 2008 agreement states:
The Notice of Removal dated October 12, 2007, is hereby held in abeyance.
[Petitioner] will [] serve a (2) year probationary period from the date
[petitioner] signs this agreement. If no further discipline is issued
during the probationary period, the removal notice dated October 12, 2007,
will be removed from [petitioner's] record. If [petitioner] receives
discipline or violates any of the terms and conditions of this agreement,
the Notice of Removal dated October 12, 2007 will be reinstated . . . and
[petitioner] will be immediately removed from [agency] employment.
An MSPB Administrative Judge held a hearing on the matter. At the
hearing, petitioner stated that his absences were due to his participation
in drug programs. The record showed that petitioner often failed to
give advance notice of his absences and informed management within
an hour of the start of his tour of duty that he would be absent.
Thereafter, the AJ issued an Initial Decision finding no discrimination.
Specifically, the AJ found that petitioner failed to establish that
he is a qualified individual with a disability because, as petitioner
acknowledged, he had no medical restrictions or problems with work once
he arrived there. The AJ held further that petitioner failed to show
that he was treated disparately; or that he requested accommodation,
i.e., continued unscheduled absences, and that such would be reasonable.
The Initial Decision became the Final Order of the MSPB. Petitioner then
filed the instant petition.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Based upon a thorough review of the record, it is the decision of
the Commission to CONCUR with the final decision of the MSPB finding
no discrimination1. The Rehabilitation Act does not preclude an
employer from establishing and enforcing standards of employee conduct
as long as such standards are job-related, consistent with business
necessity, and enforced uniformly among all employees. EEOC Enforcement
Guidance: The Americans with Disabilities Act - Applying Performance and
Conduct Standards to Employees with Disabilities, III, Questions 9 & 20
(September 2008); EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act, EEOC Notice
No. 915.002 (October 17, 2002.) During a period a little over two years,
the agency entered into four last chance agreements with petitioner
regarding his irregular attendance and unscheduled absences, to no avail.
The Commission finds that the MSPB's decision constitutes a correct
interpretation of the laws, rules, regulations, and policies governing
this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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
January 23, 2009
__________________
Date
1 We assume for the purpose of analysis that petitioner is an individual
with a disability. See 29 C.F.R. � 1630.2(g)(1).
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0320090011
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090011