Martin J. Egan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area Office), Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01974538 (E.E.O.C. Feb. 3, 2000)

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.