01A11150
06-20-2002
Gary M. Mikovich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Gary M. Mikovich v. United States Postal Service
01A11150
June 20, 2002
.
Gary M. Mikovich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A11150
Agency No. 4-H-335-0052-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment 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 appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Mail Processor at the agency's Lakeland, Florida, facility.
Beginning on June 16, 1999, complainant was absent without leave (AWOL)
for approximately four months. After attempts to try and contact
complainant, including the sending of letters notifying complainant that
his continued failure to report for duty would result in his removal
from the agency's employ, complainant's employment was terminated.
Complainant sought EEO counseling and subsequently filed a formal
complaint on November 17, 2000, alleging that he was discriminated
against on the basis of disability (depression) when he was removed from
the agency on September 29, 1999.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant could not establish a
prima facie of disability discrimination because he is not a individual
with a disability. The agency found that, despite the medical evidence
of his mental condition, complainant did not demonstrate that he was
substantially limited in a major life activity.
On appeal, complainant contends that he is a qualified individual with a
disability, and that his absence was due to a temporary mental breakdown.
Complainant further argues that he should be able to resume his position
with the agency as an accommodation of his disability. The agency
requests that we affirm its FAD.
ANALYSIS
Assuming that complainant was a individual with a disability, he adduced
no reliable evidence that his supervisor had notice of his disability or
that he requested a reasonable accommodation before he was removed from
the agency. As a general rule, the individual with a disability -- who
has the most knowledge about the need for reasonable accommodation -- must
inform the employer that an accommodation is needed. EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the Americans
With Disabilities Act (March 1, 1999) at Question 39 (Guidance). We find,
therefore, that complainant was not denied a reasonable accommodation
at the time of his removal because the agency was not on notice that an
accommodation was needed.
Regular attendance is an uniformly applied conduct rule, that is
job-related and consistent with business necessity. Since reasonable
accommodation is always prospective, an employer is not required to excuse
past misconduct even if it is the result of the individual's disability.
Guidance at Question 35. Accordingly, we conclude that the agency
was not required to excuse the misconduct of his 4 months of AWOL nor
rescind the discharge. An employer may discipline an employee with a
disability for engaging in such misconduct if it would impose the same
discipline on an employee without a disability. Guidance at Question 34.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 20, 2002
__________________
Date
1 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.