01A34243
11-24-2004
Michael A. Valente, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael A.Valente v. United States Postal Service
01A34243
11-24-04
.
Michael A. Valente,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34243
Agency No. 1H324003401
Hearing No. 150-2002-08522X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Mailhandler Technician at the
agency's West Palm Beach Processing and Distribution Center, filed a
formal EEO complaint on October 29, 2001, alleging that the agency had
discriminated against him on the basis of mental disability (bi-polar
disorder) when:
On August 20, 2001, he received a notice of removal, dated August 16,
2001, which charged him with being continuously absent without leave
(AWOL) from work since March 23, 2001 and not providing sufficient
documentation to support his absence from work.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
In her decision, the AJ concluded that there were no genuine issues of
material fact and that complainant failed to establish a prima facie
case of disability discrimination because he failed to show that he was
a qualified individual with a disability under the Rehabilitation Act.
The agency's final order implemented the AJ's decision and this appeal
followed. On appeal, complainant argues that the agency improperly
charged him with absence without leave for not providing sufficient
documentation and failed to accommodate his serious medical condition.
After a careful review of the record, the Commission finds that granting
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies and laws.
To establish a prima facie case of disability discrimination under a
disparate treatment and/or a failure to accommodate theory, complainant
must demonstrate that: (1) he is an individual with a disability as
defined in 29 C.F.R. � 1630.2 (g);<1> (2) he is a �qualified individual
with a disability� as defined in 29 C.F.R. � 1630.2 (m);<2> and (3)
he was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination and/or denial
a reasonable accommodation. Prewitt v. United States Postal Service,
622 F. 2d 292 (5th Cir. 1981).
Construing the evidence in the light most favorable to complainant, we
find that complainant failed to establish a prima facie case of disability
discrimination in that he failed to show that he was a qualified
individual with a disability as defined by the Rehabilitation Act.
The record contains clear and unequivocal statements that complainant
was unable to work. Specifically, the record contains a statement from
complainant's physician dated March 8, 2001 which provided in relevant
part, �[Complainant] will require psychiatric treatment and medication for
the rest of his life ... I do not feel he is able to return to work and I
suggest he should apply for disability benefits.� Report of Investigation
Exhibit 106, hereinafter ROI Ex.106. The record also contains a statement
complainant made in support of his application for disability retirement
dated March 20, 2001 which provided in relevant part, �I have been unable
to work in any capacity since I became ill.�<3> ROI Ex. 96. In addition
to stating that he was �unable to work in any capacity,� complainant had
not reported to work from March 23, 2001, to the effective date of his
removal, September 16, 2001, and had not given any indication that he
would or could return to work in any capacity. Based on this evidence,
we find that complainant is not a qualified individual with a disability
who, with or without reasonable accommodation, can perform the essential
function of any position.
We further find that complainant was not a qualified individual
with a disability because there was no reasonable accommodation
which would enable complainant to perform the essential functions of
any position. Complainant contended that he was unable to work in any
capacity because of his medical condition and he requested leave without
pay (LWOP) as a reasonable accommodation. ROI Ex. 9 & 96. At the time
of his removal, complainant had not reported to work for six months
and had not provided any indication of when, or if, he would return
to work. Although leave is permitted as an accommodation, LWOP for an
indefinite period of time with no indication that one will or could
return is not an accommodation contemplated under the Rehabilitation
Act. See Carney v. Federal Deposit Insurance Corporation, EEOC Appeal
No. 01986113 (August 3, 2000) (complainant was found not to be a qualified
individual with a disability where she could not demonstrate that with the
accommodation of extended LWOP she would be able to perform the essential
functions of her job); Williams v. United States Postal Service, EEOC
Request No. 01971683 (January 19, 1999) (complainant found not to be
a qualified individual with a disability because there was no showing,
after an extended absence, that at any time in the foreseeable future
he could perform the essential functions of his position.)
Complainant's disability claim also fails because he failed to identify
any nondisabled employees who were treated differently under similar
circumstances or any other evidence from which a reasonable inference
could be made that the agency's action was motivated by unlawful
discrimination. Complainant was charged with being continuously
absent without leave and failing to provide sufficient documentation to
support his absence. Complainant provided the March 8, 2001 note from his
physician referenced herein and a copy of his application for disability
retirement dated March 20, 2001, but the agency determined that this
documentation was not sufficient to support complainant's absence. <4>
Accordingly, the record reveals that on May 8, 2001, the agency sent
complainant a letter advising that he had not provided acceptable evidence
to support his absence and requested that he do so within five days of
receipt of the letter or he would be charged with AWOL. On June 25, 2001,
the agency sent complainant another notice directing him to report for
an investigative interview on June 29, 2001 to discuss his AWOL status
and to submit documentation for his absence. The notice explicitly
advised complainant that his failure to report for the interview could
result in further action without benefit of his explanation. ROI Ex. 18.
It is undisputed that complainant failed to attend the scheduled interview
notwithstanding the serious nature of the notice. There is no evidence
in the record, and complainant does not allege, that he was unable to
report to the interview because of incapacitation due to his asserted
disability. Rather, complainant contends that he believed he did not
have to attend the interview because of information relayed to him by the
union shop steward which was purportedly relayed to her by complainant's
immediate supervisor. ROI Ex.128.
Having not received an acceptable response from Complainant, the agency
determined the penalty of removal was appropriate given complainant's
failure to comply with its requests and his past disciplinary record for
unsatisfactory attendance including a letter of warning for unsatisfactory
attendance issued on November 18, 1999, and a seven day suspension for
unsatisfactory attendance issued on February 24, 2000. ROI Ex. 54-56. <5>
We find that complainant failed to present sufficient evidence to show
that the agency's articulated reasons were pretextual.
We discern no basis to disturb the AJ's decision. 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 agency's final order.
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
___11-24-04_______________
Date
1 For the purpose of this analysis, we
will assume, without finding, that complainant is an individual with
a disability.
2 The term �qualified� individual with a disability means a disabled
person who, with or without reasonable accommodation, can perform the
essential functions of the position.
3 Complainant asserted that he became disabled with bi-polar disorder
in September 2000. ROI Ex. 96.
4 Complainant did not allege that the agency's stated reason was
pretextual (i.e., complainant did not allege or present any evidence to
show that the agency found acceptable similar documentation provided by
employees outside of complainant's protected group).
5 We note that complainant asserts that he became ill with bi-polar
disorder in September 2000. ROI Ex. 96. Hence, his disciplinary record
for absenteeism predated his asserted disability.