Michael C. Butler, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionApr 20, 2000
01972872 (E.E.O.C. Apr. 20, 2000)

01972872

04-20-2000

Michael C. Butler, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.


Michael C. Butler v. United States Postal Service

01972872

April 20, 2000

Michael C. Butler, )

Complainant, )

) Appeal No. 01972872

v. ) Agency No. 4H-370-1130-094

) Hearing No. 250-94-8014X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest Region), )

Agency. )

____________________________________)

DECISION

The Commission accepts complainant's timely appeal from a final agency

decision ("FAD") concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq.; and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The

appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405).<2> In his complaint, complainant

alleged that he was discriminated against based on his physical disability

(amputation of right leg below knee) and retaliation for his prior EEO

activity when the agency denied him reinstatement. Complainant also

alleges on appeal that he was not permitted to raise an allegation that

the agency's actions constituted discrimination based on the disability

of alcoholism.

Complainant joined the agency in 1985, and his employment was terminated

on September 13, 1991, after he failed to comply with the terms of a

Last Chance Agreement.<3> That agreement was executed after complainant

had been absent at least sixty-six times in a seven month period and,

under the terms of the agreement, complainant was required to, among

other matters, submit a doctor's certificate to justify any absences.

Complainant was discharged after he submitted a falsified doctor's

certificate to cover an absence of two days.

Complainant applied for reinstatement on October 13, 1993. After his

application was denied in January 1994, he timely sought EEO counseling

and filed his instant EEO complaint, which was accepted and investigated

by the agency. In his formal complaint, complainant contended that the

agency discriminated against him based on his physical disability of an

amputation of the right leg below the knee and reprisal for prior EEO

activity. Complainant also discussed these two bases in his affidavit

included in the Report of Investigation. Thereafter, complainant timely

requested a hearing before an EEOC Administrative Judge ("AJ") and secured

the services of an attorney. Prior to the hearing, complainant's counsel

requested to amend complainant's complaint to include an allegation

that the agency's actions constituted discrimination for failing to

accommodate the disability of alcoholism. The AJ denied the motion.

After the hearing, the AJ issued a recommended decision ("RD") finding

no discrimination. In the RD, the AJ found that because complainant's

lower right leg was amputated, he was an individual with a disability as

defined by the Commission's Regulations.<4> Complainant had submitted

his reinstatement application to three different locations with different

hiring authorities. The AJ found that the individuals who acted on the

application at two of the locations neither knew complainant nor were

aware of his amputation or his prior EEO activity. The Plant Manager

at the Memphis location was aware of complainant's amputation but not

of his prior EEO activity. The Plant Manager and the other officials

testified that complainant's reinstatement request was denied based on

complainant's disciplinary record, particularly his falsification of the

medical documentation. Hearing Transcript ("HT") at 105, 124, 127, 147.

The AJ found that complainant could not establish a prima facie case of

disparate treatment discrimination on the basis of disability in that he

failed to establish that the agency had reinstated any similarly situated

person with a comparable disciplinary record. See Prewitt v. United

States Postal Service, 662 F.2d 292 (5th Cir. 1981). (In this respect,

the AJ discussed information in the record reflecting that the agency

had reinstated two former employees with a history of alcoholism, and

refused to reinstate a third employee with such a history. For various

reasons, the AJ found that these employees were not similarly situated.)

The AJ found that complainant could not establish a prima facie case of

reprisal in that none of the applicable officials were aware of his prior

EEO activity, and such activity had, in any event, occurred nine years

previously, which was too long a period to draw an inference of reprisal.

See Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).

In its FAD, the agency adopted the RD. In the brief filed on appeal,

complainant's counsel notes that complainant lacked legal representation

at the time he filed the complaint. The brief argues that the AJ

committed prejudicial error by refusing to allow complainant to amend

his complaint. Counsel contends that the AJ should have granted

complainant's request to remand his complaint back to the agency for

a full investigation which would permit him to establish the merits of

his claim of unlawful discrimination based on alcoholism.

With respect to complainant's contentions on appeal, the Commission

notes that a complainant may amend a complaint at any time, prior

to issuance of the FAD, to add or delete bases without changing the

identity of the claim. See Sanchez v. Standard Brands, Inc., 431 F.2d

455 (5th Cir. 1970); Dragos v. United States Postal Service, EEOC Request

No. 05940563 (January 19, 1995). The Commission finds that the addition

of the basis of disability discrimination based on alcoholism would

not have changed the identity of complainant's claim. Accordingly,

the Commission finds that the AJ should have permitted complainant to

raise this basis.

However, the Commission finds that the record on appeal is adequate to

address the issue. Complainant's counsel essentially contends that the

agency was obligated to ignore complainant's prior disciplinary history

as an accommodation for his disability of alcoholism. To support his

claim of a casual relationship, complainant essentially admits that he

falsified the medical certificate and reasons that, because he was under

the influence of the disease of alcoholism at the time he submitted

the falsified certificate, there is a nexus between his alcoholism

and his misconduct. However, the Commission finds this reasoning to

be flawed and insufficient to establish the requisite nexus between

his alcoholism and his misconduct. The misconduct in this case is of

an intentional nature, and it is the nature of the misconduct that is

dispositive. Complainant was not so intoxicated that he was unaware of

his actions when he obtained a medical certification, entered falsified

information and submitted the falsified certificate to management.

As the misconduct was intentional, the intentional nature of the

misconduct is an intervening factor that defeats his nexus argument.

See Brown v. Department of the Navy, EEOC Petition No. 03950033 (August

24, 1995), Thompson v. Department of Justice, EEOC Petition No. 03920036

(August 19, 1993). See also EEOC Compliance Manual, Volume 2, EEOC

Order 915.002, Section 902, at notes 11 and 12.

The Commission notes that agency officials testified that they

uniformly applied the criteria for reinstatement and determined that

complainant's history, particularly his admitted falsification of a

medical certificate, did not warrant reinstatement. Inasmuch as the

officials denied reinstating any former employee who had been terminated

for falsification of documents, the Commission finds that complainant

failed to establish that the denial of his request for reinstatement

made just two years after his termination constituted discrimination on

the basis of his record as an individual with alcoholism or failure to

accommodate the disability of alcoholism.

The Commission further finds that the evidence does not establish that

the agency's articulated reasons for denying complainant's request for

reinstatement were a pretext to mask discrimination based on either his

physical disability of amputation or reprisal. Pursuant to 64 Fed. Reg

37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405(a)), all

post-hearing factual findings by an AJ will be upheld if supported by

substantial evidence in the record. Substantial evidence is defined as

"such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion." Universal Camera Corp. v. National Labor

Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding

regarding whether or not discriminatory intent existed is a factual

finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

Accordingly, after a careful review of the entire record, it is the

decision of the Commission to AFFIRM the FAD as modified in this decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

April 20, 2000

_______________ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1 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 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.

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.

3 The Commission notes that an employer does not have to offer a "firm

choice" or a "last chance agreement" to an employee who performs poorly

or who has engaged in misconduct because of alcoholism. See Johnson

v. Department of the Interior, EEOC Petition No. 03940100 (March 28,

1996). However, an employer may choose to do so. See EEOC Enforcement

Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act (March 1, 1999).

4 As noted in Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2149

(1999), "individuals who use prosthetic limbs ... may be mobile and

capable of functioning in society but still be disabled because of a

substantial limitation on their ability to walk or run." The record

does not indicate the extent to which complainant's prosthetic limb may

mitigate his impairment or whether an individualized assessment was made

to determine his limitations. However, the Commission assumes for the

purpose of analysis that complainant is substantially limited in his

ability to walk or run.