03a10024
02-14-2001
Alton D. McCullough, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Alton D. McCullough v. United States Postal Service
03A10024
February 14, 2001
.
Alton D. McCullough,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 03A10024
Agency No. (MSPB) DC-0752-00-0604-I-1
DECISION
On November 2, 2000, petitioner (complainant) timely filed a petition
with the Commission for review of the October 5, 2000, decision of
the Merit Systems Protection Board (MSPB), concerning allegations of
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The
petition is governed by the provisions of the Civil Service Reform Act
of 1978 and EEOC Regulations, 29 C.F.R. � 1614.303 et seq.<2> Petitioner
alleged that he was discriminated against on the basis of disability, when
he was removed from his position for leave-related violations and not paid
for leave taken while undergoing treatment for his disability. The MSPB
found that the United States Postal Service (hereinafter referred to as
the agency) did not engage in discrimination as alleged by petitioner.
For the reasons that follow, the Commission concurs with the decision
of the MSPB.
BACKGROUND
The record reveals that during the relevant time, petitioner was employed
as a Supervisor of Maintenance Operations at the agency's Reagan National
Airport Mail Center facility in Arlington, VA. He was removed effective
May 12, 2000, on charges of failure to comply with official instructions
set forth in a return to work letter dated March 7, 2000, and absence
without leave (AWOL) from February 7, 2000, through the date of the
notice of his proposed removal, April 4, 2000. Believing he was a
victim of discrimination, on June 9, 2000, petitioner filed an appeal
to the MSPB. After holding a hearing, the MSPB administrative judge
(AJ) dismissed the appeal. Petitioner did not appeal the AJ's decision
further to the full MSPB. The initial decision accordingly became a
final decision of the MSPB.
Petitioner stopped working on October 3, 1999, due to chronic illnesses
of major depression and anxiety attacks. He initially took leave under
the Family and Medical Leave Act of 1993 (FMLA). His entitlement to FMLA
leave expired on January 15, 2000. However, in a letter dated February
3, 2000, his doctor medically cleared him to return to duty, effective
February 7, 2000, with no restrictions. The agency also medically
cleared petitioner to return to work with no restrictions on February 8,
2000, effective that same date. When he attempted to return to work,
petitioner found that his supervisor had assigned him to a new shift.
Petitioner requested that he be returned to work on his former shift as a
reasonable accommodation for his disability of depression. His supervisor
denied his request, and petitioner did not return to work.
Petitioner acknowledged that, after he did not return to work, he received
a return-to-work letter from the agency dated March 7, 2000. The letter
instructed that he report to work within five days of receipt of the
letter and submit acceptable evidence to cover his absence from February
7, 2000, to the date of his return to work. The letter also stated that
failure to comply with the instructions would result in an AWOL charge.
Petitioner admitted being absent as charged and failing to follow the
instructions set forth in the March 7, 2000, return-to-work letter.
The April 4, 2000, Notice of Proposed Removal reiterated that petitioner
did not submit acceptable evidence to support his absence, and that
petitioner could respond to the Notice. The May 9, 2000, Letter of
Decision noted that petitioner had not responded to the charges.
Petitioner indicated that he communicated only with his EEO counselor,
not with this supervisors or anyone else at the agency. He conceded he
did not submit any documentation or medical evidence pertaining to his
continued absence, as requested by the agency.
The AJ found petitioner showed he had a disability, major depression,
that apparently was in remission at the time he was authorized to return
to work. However, the AJ found that petitioner did not show that he was
entitled to reasonable accommodation as a qualified individual with a
disability, because petitioner did not show that his disability caused
the misconduct with which he was charged.
The AJ thus emphasized that petitioner admitted the charges, and did not
allege, argue, or show that his disability of depression caused him to
commit the misconduct charged. The AJ also pointed out that petitioner
did not allege that he was too ill to follow the instructions, and
that the record indicated he was sufficiently recovered to return to
work without any restrictions from his doctor as of February 7, 2000.
The AJ thus concluded that petitioner did not meet his burden of proving
his disability discrimination claim. The AJ additionally noted that
even if an employee's misconduct is a manifestation of a disability, an
employer may nevertheless discipline a disabled employee for job-related
misconduct for which any other, nondisabled employee would also be held
accountable. In the AJ's view, it was obvious that a two-month absence
from work without communication with or response to inquiries from one's
superiors is misconduct for which any
employee, disabled or not, would reasonably be held accountable. Finally,
the AJ found that the penalty of removal for such a lengthy unexcused,
unexplained absence was reasonable.<3>
On petition to the Commission, petitioner submits that he should have
been paid 867 hours of sick leave and 400 hours of annual leave while he
was out seeking treatment for his condition,<4> and that he should have
been entitled to FMLA leave for the periods he was charged AWOL since
he had 13 years of service.<5> In addition, petitioner argues that he
should have been allowed to return to work in the same position he left
as a reasonable accommodation, and that such accommodation would not
have caused the agency undue hardship. Petitioner further suggests that
verbal abuse and aggressive behavior from his supervisor and manager was
not appropriate while he was out seeking treatment. Finally, petitioner
submits that termination was not reasonable after he had been treated for
major depression, essentially arguing that his removal was unreasonable.
In response, the agency requests that the Commission concur with the
MSPB's decision that the agency did not discriminate against petitioner
on the basis of disability. The agency also requests that the petition
be rejected, because petitioner failed to certify that he served the
petition on the opposing party as required by 29 C.F.R. � 1614.303(d).
The agency submits that petitioner did not serve the petition on its
designated service representative or the agency generally.
ANALYSIS AND FINDINGS
Agency's Request to Reject Petition for Failure to Certify Service
We deny the request. The agency has failed to show any prejudice by
petitioner's failure. Indeed, the agency responded to the petition,
so it must be assumed that the agency eventually did receive a copy of
the petition. Nevertheless, petitioner is advised for the future that
the Commission's regulations require that the petition for review be
served upon all individuals and parties on the MSPB's service list by
certified mail on or before the filing with the Commission and the Clerk
of the MSPB. The petitioner must also certify as to the date and method
of service. 29 C.F.R. � 1614.303(d).
Merits of the Case
The Commission must determine whether the decision of the MSPB
with respect to the allegation of discrimination based on disability
constitutes a correct interpretation of applicable law, rule, regulation
or policy directive and is supported by evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9(c).
To establish a prima facie case of disability discrimination, petitioner
must show that: (1) he is an individual with a disability as defined in 29
C.F.R. � 1630.2(g); (2) he is a �qualified� individual with a disability
as defined in 29 C.F.R. � 1630.2(m); and (3) the agency took an adverse
action against him. See Prewitt v. United States Postal Service, 662
F.2d 2902 (5th Cir. 1981). Petitioner also must demonstrate a causal
relationship between his disabling condition and the agency's reasons
for the adverse action.
Accordingly, the threshold question in a case of disability discrimination
is whether an individual is a person with a disability within the meaning
of the Rehabilitation Act. 29 U.S.C �� 791, 794(c); 29 C.F.R. � 1630.2.
Section 1630.2(g) defines an individual with a disability as one who:
(1) has a physical or mental impairment that substantially limits
one or more of that person's major life activities; (2) has a record
of such impairment; or (3) is regarded as having such an impairment.
Section 1630.2(i) defines �major life activities� as including the
functions of caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.
The AJ found that petitioner had been �under treatment for major
depression, a condition that can constitute a disability within the
meaning of the Rehabilitation Act when it substantially limits a major
life activity such as caring for oneself or working.� AJ Decision
at 5-6. The AJ then went on to find that petitioner �showed that he had
a disability, major depression, that apparently was in remission at the
time he was authorized to return to work.� Id. at 6. It thus appears
that the AJ found that petitioner was a person with a disability under
prong two of the disability definition, i.e., petitioner had a record
of a disability. The agency does not dispute the AJ's threshold finding.
It is undisputed petitioner meets the threshold requirement which
would entitle him to the protections of the Rehabilitation Act,
but petitioner also must show that he is a �qualified� individual
with a disability within the meaning of 29 C.F.R. � 1614.203(a)(6).
That section defines qualified individual with a disability, inter alia,
as meaning, with respect to employment, a disabled person �who, with or
without reasonable accommodation, can perform the essential functions
of the position in question.� The term �position in question� is not
limited to the position held by the employee but also includes positions
that the employee could have as a result of reassignment.
There is no dispute that petitioner was qualified to do the essential
functions of his position. Indeed both petitioner's doctor and the
agency had cleared petitioner to return to work without restriction.
1. Petitioner's Request to Return to His Old Shift
The question raised is whether the agency was required to honor
petitioner's request to return to his old shift as a reasonable
accommodation, instead of instructing him to work on a new shift. As
pertinent to this proceeding, the Commission's regulations define
�reasonable accommodation� to mean �[m]odifications or adjustments to
the work environment, or to the manner or circumstances under which
the position held or desired is customarily performed, that enable a
qualified individual with a disability to perform the essential functions
of that position.� 29 C.F.R. � 1630.2(o)(ii). (Emphasis added).
It is thus important to note that in the context of the present case,
the purpose of reasonable accommodation is to assist the person with a
disability to perform the essential functions of the position. There is
no indication that petitioner's shift assignment was determinative of
whether petitioner could do the essential functions of the position or
not. In other words, petitioner has not established that he could not do
the essential functions of the job, working in the new shift assignment.
If petitioner could not do the essential functions of the job, working the
new shift assignment, a request for accommodation would be appropriate,
to the extent such accommodation would enable the individual to do the
essential functions of the job or provide him with an equal employment
opportunity.
The AJ found that petitioner was not entitled to reasonable accommodation,
insofar as he was requesting to return to his old shift. We agree.
Petitioner's doctor only indicated in a February 16, 2000, note
that petitioner �would benefit from working night shift because of
his emotional condition.� AJ Decision at 6. Petitioner's doctor
cleared him to work without restriction, effective February 7, 2000.
The agency cleared petitioner to work without restriction, effective
February 8, 2000. We therefore see no duty on the part of the agency
to have granted petitioner's request to return to his old shift.
Moreover, the employer may also choose among reasonable accommodations
as long as the chosen accommodation is effective. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (March 1, 1999)(Reasonable Accommodation
Guidance) at 17. The employer is not required to provide the reasonable
accommodation that the individual wants. See Guidance at 17-18. If more
than one accommodation is effective, �The preference of the individual
with a disability should be given primary consideration. However,
the employer providing the accommodation has the ultimate discretion
to choose between effective accommodations. Reasonable Accommodation
Guidance at 18, quoting 29 C.F.R. Part 1630 app. � 1630.9 (1997).
2. Petitioner's Removal
We next conclude that the agency did not discriminate against petitioner
by removing him for his misconduct. The agency was not required to
excuse petitioner's misconduct as a form of reasonable accommodation.
Stewart v. Department of the Interior, EEOC Petition No. 03980128
(March 11, 1999). See also Brooks v. Small Business Administration,
EEOC Petition No. 03980014 (September 24, 1998) ( employers not required
to excuse violation of uniformly-applied conduct or job performance
standards as a form of reasonable accommodation. An employer may
discipline an individual with a disability for violating a workplace
conduct standard even if the misconduct resulted from a disability.<6>
EEOC Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities (March 25, 1997) at 29. See also EEOC
Compliance Manual � 902.2 n.11, Definition of the Term �Disability,�
8 FEP Manual (BNA) 405:7259, n.11 (1995) (an employer �does not have
to excuse . . . misconduct, even if the misconduct results from an
impairment that rises to the level of a disability, if it does not excuse
similar misconduct from its other employees�); 56 Fed. Reg. 35,733 (1991)
(referring to revisions to proposed ADA rules
that �clarify that employers may hold all employees, disabled (including
those disabled by alcoholism or drug addiction) and nondisabled, to the
same performance and conduct standards�).
Essentially petitioner was AWOL from February 7, 2000 through the date
of the notice of proposed removal, April 4, 2000. Petitioner received a
return to work letter from the agency dated March 7, 2000, instructing him
to report to work within five days of receipt of the letter and to submit
acceptable evidence to cover his absence from February 7 to the date of
his return to work. The letter also stated that failure to comply with
its instructions would result in an AWOL charge. Petitioner conceded he
did not submit any documentation or medical evidence pertaining to his
continued absence, as requested by the letter. Petitioner also declined
to respond to the notice of proposed removal.
We further agree with the AJ that a two-month absence from work without
communication with or response to inquiries from one's superiors is
misconduct for which any employee, disabled or not, would reasonably
be held accountable. The AJ further pointed out that petitioner,
as a supervisor, was very familiar with the agency's attendance and
leave-requesting regulations and had to enforce them with his own
subordinate employees.
Finally, petitioner suggests, presumably as a defense to being AWOL,
that verbal abuse and aggressive behavior from his supervisor and manager
was not appropriate while he was out seeking treatment. Petitioner,
in his petition for review, points to no evidence concerning the
severity, duration, and nature of the behavior alleged. However, from
the hearing before the AJ, it appears petitioner argues he was harassed,
because the agency wanted him to come back to work. Certainly, evidence
showing that the agency wanted petitioner to come back to work would not
support a contention that the agency wanted to remove him, especially
on a discriminatory basis, such as disability.<7>
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
Board'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.
STATEMENT OF PETITIONER'S RIGHTS
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
February 14, 2001
Date
1The 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.
2 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 On his appeal form to the MSPB, petitioner asserted that he had been
discriminated against on the bases of disability and race. However, the
AJ noted in her decision, that at the prehearing conference, petitioner
did not present any evidence relating to race discrimination, and at the
hearing, petitioner only introduced evidence and argument relating to
disability discrimination. The AJ therefore found that petitioner waived
his claim of race discrimination, since he presented no allegations,
evidence, or argument in support of that claim at any point in the
proceedings.
4 Although petitioner raised this issue before the MSPB, it is an issue
beyond the jurisdiction of the MSPB. The AJ did not address the issue,
and the Commission will not address the issue here. Nevertheless, the
Commission notes that petitioner filed a related EEO complaint on this
issue with the Commission dated October 25, 2000. That complaint will
be appropriately addressed separately.
5 The Department of Labor (Employment Standards Administration, Wage and
Hour Division) enforces the FMLA. The Commission has no enforcement
responsibility for the FMLA. See the Commission's Fact Sheet on The
Family and Medical Leave Act, the Americans with Disabilities Act, and
Title VII of the Civil Rights Act of 1964. Accordingly, this decision
does not address petitioner's FMLA concerns.
6 The workplace conduct standard must, of course, be job-related and
consistent with business necessity. Guidance at 29.
7 We also note that consistent with the Commission's policy and
practice of determining whether a petitioner's harassment claims are
sufficient to state a hostile or abusive work environment claim, the
Commission has repeatedly found that claims of a few isolated incidents
of alleged harassment usually are not sufficient to state a harassment
claim. See Phillips v. Department of Veterans Affairs, EEOC Request
No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC
Request No. 05940481 (February 16, 1995).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),
the Supreme Court reaffirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of the
petitioner's employment. The Court explained that an �objectively
hostile or abusive work environment� is created when �a
reasonable person would find [it] hostile or abusive: and the complainant
subjectively perceives it as such.� Harris, supra, at 21-22. Thus,
not all claims of harassment are actionable.