01974538
02-03-2000
Martin J. Egan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area Office), Agency.
Martin J. Egan v. United States Postal Service
01974538
February 3, 2000
Martin J. Egan, )
Complainant, )
) Appeal No. 01974538
v. ) Agency No. 4-J-600-1033-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Area Office), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination based on
physical disability (diabetes), in violation of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791, et seq.<1> Complainant alleges he was
discriminated against when he was issued a notice of removal on October 6,
1994. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the FAD is AFFIRMED AS CLARIFIED.
The record reveals that complainant was hired as a custodial laborer
(PS-3) at the agency's Wilmette, Illinois facility on July 23, 1994.
When completing his pre-employment Medical Examination and Assessment
form dated June 17, 1994, complainant checked boxes indicating
that he did not have any physical impairment (Part B, question 5),
and specifically that he did not have diabetes (Part C, question 21,
item 51). See Record of Investigation (ROI) at 91, 93. On July 30
and August 13, 1994, complainant was absent on Leave Without Pay (LWOP).
The LWOP for July 30, 1994 was changed to Absent Without Leave (AWOL).
On September 11, 1994, complainant was approximately 15 minutes tardy.
On October 1-3, 1994, complainant used 24 hours of unscheduled sick leave.
The only medical documentation in the file, other than that related to
complainant's pre-employment exam, is a doctor's note requesting that
complainant be excused from work on October 4, 1994, because he was seen
on October 3 for treatment of an abscess.
Complainant received probationary period evaluations dated August 26,
1994, and September 26, 1994, stating that his work performance was
deficient. See ROI at 103-04, 108. On October 6, 1994, complainant
was issued a notice of removal, effective October 7, 1994, citing
unacceptable work performance, failure to follow directions, and poor
attendance and punctuality.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on August 25, 1995.
At the conclusion of the investigation, complainant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). By order dated November 7, 1996, the AJ remanded the
complaint file to the agency for issuance of a FAD without a hearing,
citing complainant's failure to prosecute. Specifically, the AJ noted
that a hearing had been originally scheduled for October 24, 1996, and
was then rescheduled, without objection by the parties, to November 6,
1996, at the Commission's Chicago District Office, but complainant did
not appear. The AJ further noted that complainant failed to contact
the AJ to explain his absence, and that the parties had been notified
in the Scheduling Notice that complainant's failure to appear at the
pre-hearing conference or the hearing would be treated as a failure to
prosecute or proceed without delay, resulting in return of the complaint
file to the agency.
The FAD concluded that complainant failed to establish that he was an
"individual with a disability" within the meaning of the Rehabilitation
Act. The FAD further found that even assuming arguendo complainant
had established a prima facie case of disparate treatment based on
disability, complainant had failed to demonstrate that management's
proffered legitimate non-discriminatory reasons for the removal were a
pretext for discrimination.
On appeal, complainant contends: (1) he appeared for an
originally-scheduled hearing at the location designated by the agency, but
the hearing was not held because the agency representative and witnesses
appeared at different locations; (2) the hearing was rescheduled,
but "there was some miscommunication" between the AJ and complainant
about the date, and the AJ told complainant that she would select a
new hearing date if the agency agreed, but the agency did not agree;
(3) the agency medical office has records establishing that complainant
has diabetes; (4) his first LWOP absence was approved by his supervisor,
S1; (5) his second absence, disapproved by the Postmaster, was due to
a severe insulin reaction, and when he met with the Postmaster and his
supervisor, S2, on August 15 and 22, 1994, he tried to explain this,
whereupon the Postmaster stated that he needed something in writing
regarding complainant's diabetes, but when complainant advised them to
call the agency medical staff for his records, the Postmaster and S2
changed the subject;<2> (6) when he was first hired, complainant gave S2
his Veterans Affairs medical card to copy;<3> and (7) the Postmaster had
nominated complainant for "employee of the month" during his probationary
period.<4> The agency requests that we affirm its FAD.
In order to raise a claim of disability discrimination under the
Rehabilitation Act, complainant must establish that he is an "individual
with a disability" within the meaning of the statute, defined as one who
(1) has a physical or mental impairment that substantially limits one
or more major life activities, (2) has a record of such impairment,
or (3) is regarded as having such an impairment. 29 C.F.R. �1630.2.
Major life activities include activities such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. �1630.2(i). Since the time the agency
issued its FAD, the Supreme Court has held that the determination of
whether a person has a "disability" must be based on his or her actual
condition at the time of the alleged discrimination, and therefore must
take into consideration whether the person is substantially limited in
a major life activity when using a mitigating measure, if any, such as
medication. Sutton v. United Airlines, Inc., 119 S. Ct. 2139 (1999);
Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999).
After a careful review of the record, we agree with the agency that
complainant failed to meet his burden to establish that he was an
individual with a disability within the meaning of the Rehabilitation
Act.<5> The record contains a release form executed by complainant,
authorizing the EEO office to obtain his medical records from the
agency medical office. ROI at 82. Complainant received a copy of the
investigative file, and has not argued that the agency medical records
contained therein are incomplete. As noted in the FAD, there is no
medical documentation in the record referencing complainant's diabetes,
and the medical documentation which does appear in the record contains
complainant's statement that he did not have diabetes.
We note, however, that the FAD incorrectly found that complainant's
claim could be assessed only as a disparate treatment claim rather
than a denial of accommodation claim. Notwithstanding complainant's
general statement in his affidavit that he never requested accommodation
of his alleged disability, we recognize that a request for approval
to use leave for an absence caused by a disability is an implicit
request that the absence not be used to support a disciplinary action,
and thus may constitute a request for accommodation. McNeil v. United
States Postal Service, EEOC Appeal No. 05960436 (July 28, 1998). To the
extent the Postmaster asserts in his affidavit that "all employees must
be regular in attendance regardless of any handicapping conditions,"
this statement fails to recognize the agency's obligation to accommodate
certain absences of a qualified individual with a disability where no
undue hardship is posed. Id.; see also EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act, No. 915.002 (March 1, 1999). The agency should review
such obligations accordingly with its management officials, including
those who handled the instant situation. Nevertheless, with respect to
the instant claim, because complainant has not established that he is
an individual with a disability, we do not reach the issue of whether
the agency failed to accommodate him.
Finally, with respect to the AJ's finding that complainant failed
to prosecute his claim, the Commission has held that, in certain
circumstances, an AJ has the authority to cancel a hearing and remand
a case for a FAD where the complainant fails to cooperate at the
hearing stage. See Schneider v. Department of the Treasury, EEOC Appeal
No. 01933192 (December 16, 1993), request to reconsider denied, EEOC
Request No. 05940298 (December 9, 1994). Even accepting complainant's
contentions, he acknowledges that prior to the rescheduled hearing date
he learned that the AJ would only reschedule again if the parties both
agreed, and that the agency's representative refused to agree to the
requested continuance. Nonetheless, complainant does not allege that
he thereafter contacted the AJ to explain his anticipated absence from
the hearing. Nor has complainant proffered on appeal the reason why he
did not attend the hearing. Accordingly, we find no basis for reversing
the AJ's finding of failure to prosecute and subsequent remand to the
agency for issuance of a FAD without a hearing.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED AS
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
2/3/00
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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 complainant, complainant's representative
(if applicable), and the agency on:
__________________________
Date
__________________________
Equal Employment Assistant
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2S2 denies having learned of complainant's alleged diabetes until she
reviewed his affidavit during the investigation of the instant EEO
complaint. ROI at 108. The Postmaster's affidavit neither admits nor
denies knowledge of complainant's condition at the time of issuance of
the notice of removal. ROI at 106.
3The referenced VA card is not contained in the investigative file,
and complainant does not assert whether this card contained information
which would have placed S2 on notice that complainant had diabetes.
4The exhibit on which complainant bases this assertion does not establish
that either the Postmaster or complainant's supervisors nominated him
for this honor, inasmuch as it lists numerous individuals nominated for
"employee of the month" either by customers or management. ROI at 96.
5Pursuant to the Rehabilitation Act Amendments of 1992, the ADA's
employment standards apply to all non-affirmative action employment
discrimination claims filed by federal applicants or employees with
disabilities under section 501 of the Rehabilitation Act. Pub. L.
No. 102-569 � 503(b), 106 Stat. 4344 (1992) (codified as amended
at 29 U.S.C. � 791(g) (1994)). The Rehabilitation Act regulations
governing reassignment of federal employees with disabilities,
which were promulgated several months prior to the enactment of the
Rehabilitation Act Amendments, differ in several respects from the ADA's
requirements. Compare 29 C.F.R. � 1614.203(g) with 29 C.F.R. � 1630.2(o),
(p), and � 1630.9. For purposes of non-affirmative action employment
claims, federal agencies must follow the ADA standards.