03990076
08-29-2000
Kathy S. Kite, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathy S. Kite v. United States Postal Service
03990076
August 29, 2000
.
Kathy S. Kite,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03990076
MSPB No. DC-0752-98-0455-I-1
DECISION
On March 10, 1999, the petitioner timely filed a petition with the
Equal Employment Opportunity Commission (EEOC) for review of the final
decision of the Merit Systems Protection Board (MSPB) dated February 11,
1999 concerning an allegation of discrimination in violation of �501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The issue presented is whether the petitioner was discriminated against
on the basis of disability (back) when she was removed in February 1998.
The Department of Labor's Office of Workers' Compensation Programs (OWCP)
accepted the petitioner's claim that she sustained an on-the-job back
injury in June 1994 and granted her lost wage compensation. She stopped
working around September 1994 and has not returned. In October 1996
OWCP cut-off the lost wage compensation because the petitioner failed to
accept "suitable employment," a modified position. In December 1996 a
neurological surgeon wrote that the petitioner should not lift over 20
pounds, should alternate standing, walking and sitting, and infrequently
bend, stoop or crawl.
While the record is not clear, compensation payments were apparently
restarted. Thereafter, OWCP issued a decision terminating compensation
payments effective October 11, 1997 on the grounds that the weight
of medical evidence established that her injury-related disability
ceased not later than that date. In making this finding, the OWCP
relied on the report of an orthopaedic physician to whom it referred
the petitioner for a second opinion evaluation. The physician opined
that while the petitioner had subjective complaints of back pain, there
was no evidence of significant objective pathology, and she was able
to return to regular duty. The physician noted that he was provided
with over 1� hours surveillance tapes recorded on two days in October
1996 of the petitioner doing of extensive yard work, including working
overhead, lifting, carrying and bending. The physician wrote that the
petitioner was working at a normal rate without evidence of abnormality
in gait or function, and the tapes were inconsistent with the history
the petitioner provided.
By letter dated November 13, 1997 to the petitioner, the agency wrote
that the orthopaedic physician found she could return to regular duty.
The letter instructed the petitioner to return to work on November 24,
1997 and to submit medical evidence to the medical unit which covered
her absence and stated a diagnosis and prognosis.
By letter dated December 5, 1997 to the petitioner, the agency wrote
that since October 13, 1997 she failed to report to duty or notify the
agency of her inability to do so. It instructed her to provide medical
evidence to the medical unit to cover her absence, and warned that if she
failed to do so, she could be charged with absence without official leave
(AWOL), and necessary corrective action, up to removal, could occur.
The petitioner did not return to duty and there is no evidence she
submitted medical documentation in response to either letter.
By letter to the petitioner dated January 9, 1998, the agency's
Labor Relations Office proposed the petitioner's removal on the
grounds of unsatisfactory attendance/continuous AWOL/failure to follow
instructions. It indicated that the AWOL commenced October 13, 1997,
that the petitioner did not contact the office, and she did not submit
acceptable medical documentation. The letter advised that the petitioner
or her representative could respond within 10 days of the petitioner's
receipt of the letter, either in person or in writing to the Manager,
Post Office Operations (A), and provided his address. A postal domestic
receipt for certified mail indicates that the petitioner received the
letter on January 17, 1998.
In a decision dated April 8, 1998, the Manager, Post Office Operations (A)
sustained the proposed removal and removed the petitioner retroactive to
February 17, 1998. The Manager wrote in the decision that the petitioner
did not reply to him in writing or orally regarding the charges in the
proposed notice of removal.
Thereafter, the petitioner filed an appeal with the MSPB. She submitted
a copy of a cover letter by her attorney dated January 28, 1998 addressed
to the Manager, Post Office Operations (A) with enclosed narrative medical
notes by a physician. According to the attorney, this package was sent
to the agency in January 1998. The record does not contain a proof of
service. The medical notes covered visits from August 1997 to January
1998, with one note stating the petitioner was unable to work. Therein,
the physician wrote that the petitioner had internal disc derangement of
the L5-1 level, lumbar radiculitis, abnormal spinal rhythm, was stiff,
had severe low back pain and painful lumbar disc syndrome, and was
awaiting approval for surgery. The physician wrote that the petitioner
was genuinely disabled and defended his findings against those of the
second opinion physician. The treating physician added that he did
not believe the petitioner would have subjected herself to invasive
diagnostic tests if she was not in genuine pain.
The MSPB sustained the agency's charges and the removal. It stated that
once OWCP compensation payments were terminated, AWOL could be properly
charged. It reasoned that while the agency instructed the petitioner
to return to work or provide medical evidence to support her absence,
she did not request approved leave, return to duty, or supply medical
evidence to support her absence. It found that even if the petitioner
was unable to return to work for medical reasons, her failure to request
approved leave and supply acceptable medical documentation would be
enough to support the charges. The MSPB also found that the petitioner
was not subject to discrimination on the basis of disability.
In her petition for review of MSPB's decision, the petitioner submits a
February 1, 1999 review decision of OWCP. OWCP reversed its decision
to cut-off compensation payments. In so doing, it reasoned that the
second opinion evaluation was tainted because the physician was directly
contacted by the agency. It indicated that the petitioner should be
referred to a new second opinion specialist.
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on disability
constitutes an incorrect interpretation of any applicable law, rule,
regulation or policy directive, or is not supported by the evidence in
the record as a whole. 29 C.F.R. �1614.305(c).
We make no finding as to whether she is an individual with a disability as
defined by our regulations. Rather, for the purpose of this decision,
the Commission assumes, without deciding, that the petitioner has a
disability, and our focus shifts to whether she proved there was a causal
nexus between her alleged disability and the charges upon which the agency
relied to support her removal, i.e., unsatisfactory attendance/continuous
AWOL/failure to follow instructions.
The charges stem from the finding that the petitioner was AWOL since
October 13, 1997. The petitioner does not deny that she received the
agency's letters dated November 13, 1997 and December 5, 1997 which
instructed her to return to duty and/or provide medical documentation
to cover her absence. She ignored the letters. As found by the MSPB,
the petitioner's failure to request approved leave and supply acceptable
medical evidence was sufficient to support the charges. The petitioner
submits no evidence that she was unable to respond to the letters by
requesting leave and supplying medical evidence. Accordingly, the
petitioner failed to establish a nexus between her alleged disability
and the charges upon which her removal are based.
We need not decide whether the petitioner responded to the proposed
removal because this would not relieve her of her prior duty to contact
the agency and submit medical evidence to cover her absence.
As the petitioner failed to show a causal nexus between her alleged
disability and her removal, we need not proceed further with an analysis
of whether she is a qualified person with a disability and whether the
agency must provide reasonable accommodation.
Accordingly, the Commission concurs with the decision of the MSPB that
the petitioner was not discriminated against.
CONCLUSION
Based upon the above analysis, the Commission concurs with the MSPB's
finding that petitioner was not discriminated against when she was
removed.
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 29, 2000
__________________
Date