03a60017
12-20-2005
Shawn M. LeBlanc, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shawn M. LeBlanc v. United States Postal Service
03A60017
December 20, 2005
.
Shawn M. LeBlanc,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A60017
MSPB No. DA-0752-04-0607-I-1
DECISION
On October 19, 2005, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
The record indicates that petitioner was a City Letter Carrier at the
agency's Energy Center Station in Lafayette, Louisiana. On or about
September 7, 2003, petitioner was placed in an off-duty, non-pay status,
based on an incident which occurred on September 6, 2003. The record
indicated that petitioner had a confrontation with his Supervisor
(S1) where petitioner charged at S1. She and another supervisor (S2)
had to lock the dock doors to keep petitioner out of the facility.
Petitioner yelled at S1 using offensive language. The S1 said she
was so afraid of petitioner's behavior that she called the police.
The agency investigated the incident and determined that petitioner's
actions directly caused the confrontation. The Station Manager decided
to send petitioner for a fitness for duty examination (FFDE) based on
his conduct towards the Supervisor.
On or about September 30, 2003, the agency referred petitioner for
the FFDE to a clinical psychologist. The Psychologist examined
petitioner on October 7, 2003 and issued his report on October
29, 2003. The Psychologist diagnosed petitioner with "Delusional
Disorder, Persecutory Type" and recommended that petitioner remain on
medical leave. The Psychologist believed that petitioner's symptoms
would decrease with less stress. He also suggested that petitioner be
re-evaluated in six weeks. On December 17, 2003, petitioner was seen
at a follow-up examination with the Psychologist. The Psychologist
found that petitioner was ready to return to his job at that time.
He cautioned that attention should be given to petitioner's workload
and the amount of stress petitioner was required to tolerate.
On December 26, 2003, the agency's physician (Physician) filled out
the agency's Medical Assessment Form (MA Form) concerning petitioner.
The Physician repeated the Psychologist's concerns as to stress placed
on petitioner. On January 9, 2004, petitioner wrote to the Station
Manager providing her with copies of the MA Form. Petitioner indicated
his request to report and return to work. The Station Manager attempted
to contact petitioner in order to schedule an appointment to discuss his
return to work. Petitioner and his representative attempted to meet
with the Station Manager but she had to cancel the meeting scheduled
for January 14, 2004. On January 15, 2004, the Station Manager sent
petitioner a letter instructing him to report to work on January 17, 2004.
Petitioner reported for work but did not stay because S2 informed him
that job modifications had not been made to his route. S2 noted to
petitioner that the Psychologist did not recommend any specific physical
modifications.
On January 21, 2004, the Station Manager informed petitioner that his
absence on January 17, 2004 constituted a violation of the agency's
attendance requirements. She asked that petitioner provide satisfactory
evidence for allegedly failing to report to work. Petitioner was also
placed in Leave without Pay status (LWOP) effective January 17, 2004.
By letter dated January 22, 2004, petitioner responded. He noted that
he did report for duty, however, he was told by the supervisor that the
position had not been modified. Based on the medical documentation,
without the modifications, petitioner believed that he was not medically
qualified to perform the job. Therefore, he left work since the
modifications were not made nor attempted.
The Physician issued a memorandum dated January 26, 2004, informing
the Station Manager that if she needed a physical FFDE, that she should
contact him. The Station Manager informed petitioner that on January
28, 2004, that he should report for duty the next day after he received
the letter. On February 4, 2004, petitioner's physician sent a letter
to the agency indicating that he agreed with the assessments by the
Physician and Psychologist. He noted that petitioner could return to
his regular duties with careful attention to his stress and work hours
which were not to exceed eight hours a day.
On February 17, 2004, the Station Manager again notified petitioner that
he should report to work his next scheduled work day following receipt of
the letter. She noted that petitioner would be considered AWOL unless he
provided medical documentation that he could not perform his job duties.
Petitioner received the letter but did not contact the Station Manager.
The Station Manager then sent petitioner a letter informing him that he
must report for an investigative interview on March 24, 2004. Petitioner
contacted the agency indicating that he would not attend the interview.
On April 13, 2004, the Station Manager issued a notice of proposed removal
from employment for extended absence from duty following the release
from all the physicians. Petitioner was given ten days to respond.
On April 16, 2004, petitioner contacted the Postmaster requesting more
time to respond to the notice. On May 13, 2004, petitioner provided
the Postmaster documents which were part of his FFDE. On June 23, 2004,
the Postmaster issued his decision to remove petitioner from employment.
On July 26, 2004, petitioner filed his mixed case appeal with the MSPB.
Petitioner alleged that he was discriminated against on the bases of
disability (chronic esophagitis<1>) and reprisal (prior EEO activity)
when, effective June 25, 2004, petitioner was removed from his position.
The MSPB AJ dismissed the matter without prejudice on October 4, 2004, in
order for petitioner to file for disability retirement. Petitioner had
until thirty days after receipt of the dismissal to re-file his appeal
with MSPB. Petitioner's re-filed appeal was received by the MSPB on
November 22, 2004.
After a hearing, the MSPB Administrative Judge (AJ) found that petitioner
failed to establish his claim of discrimination. In particular, as
to petitioner's claim of disability-based discrimination, the MSPB
AJ determined that the medical reports provided by petitioner did not
require the agency make any modifications to his workload or limit his
hours of work. To the extent petitioner alleged unlawful retaliation,
the MSPB AJ found that petitioner failed to establish that the reason
for his removal was pretext. Accordingly, the MPSB AJ concluded that
petitioner did not establish his claim of discrimination. Subsequently,
petitioner filed a petition for review with the Board. The Board denied
petitioner's petition for review.
This petition to the Commission followed without comment.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Disability-Based Discrimination
Petitioner asserted that the agency failed to provide him with the
modifications to his position noted by the physicians' reports. In
essence, petitioner argued that he was denied a reasonable accommodation
that would have allowed him to return to duty. Under the Commission's
regulations, an agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual
with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. �1630.9. For purposes of analysis,
we assume petitioner is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
Upon review, we find that the only "modification" listed by the physicians
was that the agency should be aware of his levels of stress and workload
and to limit his work to eight hours a day. We note that there is
no clear indication as to how petitioner's duties should be modified
to facilitate his return. The Station Manager repeatedly tried to
get clarification from petitioner as to the modifications needed.
The review of the record showed that petitioner failed to provide
any guidance. Further, petitioner has not shown that his job duties
exceeded his limitations. Therefore, we conclude that petitioner has
not shown that the agency violated the Rehabilitation Act.
Reprisal
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For petitioner to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, the agency provided legitimate, nondiscriminatory reasons
for the removal action, namely petitioner's continued AWOL status.
The burden now shifts to petitioner to establish that the agency's reason
was pretext for unlawful retaliation. We find that petitioner has not
done so. Therefore, we conclude that petitioner has not shown that the
removal action constituted unlawful retaliation.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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
December 20, 2005
__________________
Date
1 Esophagitis is an inflammation of the lining of the esophagus, the tube
that carries food from the mouth to the stomach. If left untreated,
this condition can become very uncomfortable, causing problems with
swallowing, ulcers, and scarring of the esophagus.