01966142
10-16-1998
Steven R. Belcher, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steven R. Belcher v. United States Postal Service
01966142
October 16, 1998
Steven R. Belcher, )
Appellant, )
)
v. )
) Appeal No. 01966142
William J. Henderson, ) Agency No. 1-H-371-1011-96
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant filed an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final decision of the agency concerning his
complaint of unlawful employment discrimination in violation of �501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. The final agency decision is dated August 9,
1996, and the appeal is postmarked August 13, 1996. Accordingly, the
appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted under 29
C.F.R. �1614.401.
ISSUES PRESENTED
Whether the appellant was discriminated against on the bases of disability
(alcoholism, stress, medicine) and age (46) when he was removed.
BACKGROUND
The appellant filed an EEO complaint alleging the above issue.
Following an investigation, according to the final agency decision,
the agency notified the appellant of the right to request a hearing in
May 1996, and he did not respond. The appellant does not contest this.
The final agency decision found no discrimination.
In August 1995 the agency entered into a last chance agreement (LCA)
with the appellant. In exchange for the agency holding in abeyance
the implementation of a May 1995 notice of removal, the appellant agreed
to comply with certain conditions over a period of two years. The LCA
stated that failure to do so would be a cause for immediate removal.
The conditions included attending weekly Employee Assistance Program
meetings, not being absent without leave (AWOL) for any reason, and not
using more than 104 hours of unscheduled sick leave and/or leave without
pay (LWOP) in either of the two years following the LCA. The LCA stated
that the appellant had a problem with alcohol and/or other mind-altering
substances.
On November 8, 1995, Supervisor 1 issued the appellant a notice of
proposed removal for violating the LCA. The notice charged that after
September 18, 1995, the appellant commenced requesting unscheduled sick
leave and had not returned to work, and that the unscheduled sick leave
was subsequently converted to AWOL. It also charged that on or about
October 7, 1995, the appellant took in excess of 104 hours of unscheduled
sick leave.<1>
Supervisor 1 indicated that after the appellant called in sick on
September 18, 1995, Supervisor 1 made a number of written and telephonic
attempts to contact the appellant, but the appellant did not respond until
December 7, 1995, after receiving the proposed removal. The appellant
responded in person on December 8, 1995 to Supervisor 1 and his next
level supervisor (Supervisor 2).
A notification of personnel action form reflects that the appellant was
removed effective March 6, 1996. The record does not contain a copy
of the notice of decision to remove the appellant. However, Supervisor
2 affirmed that he made the decision to do so based on the appellant's
alleged violations of the LCA.
Supervisors 1 and 2 stated they were aware the appellant had an alcohol
problem because it was referenced in the LCA. Also, they were in receipt
of a short medical letter dated December 8, 1995 that was submitted
by the appellant. It was by a physician's assistant on behalf of a
doctor and stated that the appellant was currently being treated for
"situational stress," visited the doctor's office on September 22, 1995
and December 8, 1995, was scheduled for a follow-up visit on December 22,
1995, and was on medication.
During the processing of the instant claim, the appellant indicated
he was not able to cope with his problems of alcoholism, stress,
depression and separation from his children due to a divorce.
In response to the EEO investigative question of what purview(s) he
was alleging the appellant wrote "I was having severe stress, alcohol
and medicine [sic.] not able to cope as I should...." In response
to the investigative question of how his job related activities were
affected by his disabilities, the appellant replied "I did not care
about...anything."
On appeal, the appellant makes no comment. However, he submits a
letter dated August 1, 1996 by the Chief of the Psychiatry Service at a
Department of Veterans Affairs Medical Center stating the appellant was
his patient from July 16, 1996 to August 2, 1996, was treated for clinical
depression and post traumatic stress disorder, and would continue to be
treated on an outpatient basis.
ANALYSIS AND FINDINGS
The threshold question in a case of discrimination based on disability is
whether an individual is a person with a disability within the meaning of
the Rehabilitation Act. Under 29 C.F.R. �1614.203(a)(1), an individual
with a disability is defined as one who (I) has a physical or mental
impairment which substantially limits one or more of such person's major
life activities, (ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment. Major life activities include
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).
It is well established that alcoholism is a disabling condition
for the purposes of the disability discrimination protection of the
Rehabilitation Act of 1973. Ruggles v. Department of the Navy, EEOC
Petition No. 03840216 (November 17, 1989). We find that the appellant is
an alcoholic. This is supported by his statement that he is an alcoholic
and the statements of Supervisors 1 and 2 that conceded the LCA, which
we note required treatment, concerned an alcohol problem.
The record contains little information regarding the appellant's stress
condition during the events that led to the proposed removal and decision
to remove. The appellant submitted a medical letter dated December 8,
1995 that indicated he had situational stress and visited a doctor's
office once in September 1995 and once in December 1995, and was on
medication. The appellant stated that he did not care about anything
during the above period, and indicated this feeling was an impairment.
The appellant has submitted no evidence to corroborate he had such
an impairment. Further, to the extent he had such an impairment the
appellant has not shown it was caused by stress as opposed to drinking.
Based on the above, we find that the appellant has not proven that
situational stress and the medication he was taking for it constituted an
impairment which limited a major life activity prior to his removal.<2>
Moreover, the record does not show that the appellant had a record of
such a disability or was regarded as having such a disability.
The agency's charge that the appellant violated the LCA through his
extended absence is supported by the record. Moreover, the appellant
strongly suggested in his affidavit that at least some of this extended
absence was caused by his alcoholism. Accordingly, the appellant has not
shown that he was discriminated against on the basis of his disability
of alcoholism when he was removed for violating his LCA.
We now turn to the appellant's claim of age discrimination. Since the
agency articulated a legitimate, nondiscriminatory reason for its action,
as set forth below, we may proceed directly to whether the appellant
demonstrated by a preponderance of the evidence that the agency's reasons
for its action was merely a pretext for discrimination. United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
The agency explained that it removed the appellant for the reason charged.
The appellant has failed to show this explanation was a pretext to
mask discrimination, or otherwise prove discrimination. Accordingly,
the final agency decision finding no discrimination is affirmed.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which found that the appellant was not discriminated against when
he was removed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 16, 1998
______________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Thereafter, the supervisor made statements indicating that the
appellant was carried on unscheduled sick leave from September 18,
1995 to October 2, 1995 or November 2, 1995, and then was carried on
AWOL status until he was terminated.
2The medical letter the appellant submitted on appeal is of little
probative value since it concerns diagnoses and events that occurred
months after the appellant was removed.