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.