03990085
02-13-2001
Richard W. Ferons, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard W. Ferons v. United States Postal Service
03990085
02-13-01
.
Richard W. Ferons,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03990085
MSPB No. DE-0752-97-0012-I-1
DECISION
INTRODUCTION
On May 12, 1999, Richard W. Ferons (petitioner) initiated a petition to
the Equal Employment Opportunity Commission (Commission) for review of
the final order of the Merit Systems Protection Board (Board or MSPB)
concerning his allegation of discrimination in violation of the Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq,
the Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29
U.S.C. � 621 et seq, and the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq. The Commission accepts this petition in accordance
with the provisions of the Civil Service Reform Act of 1978, and EEOC
Regulations at 29 C.F.R. � 1614.302 et seq.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that the
agency did not discriminate against the petitioner when he was removed
from the position of Mailhandler at the General Mail Facility (GMF),
Denver, Colorado, effective September 30, 1995, constitutes a correct
interpretation of all applicable laws, rules, regulations, and policy
directives, and is supported by the record as a whole.
BACKGROUND
On February 4, 1992, management proposed petitioner's removal because he
was allegedly under the influence of an intoxicant and for being absent
without authorization from his work area. On April 9, 1992, the agency
issued a decision which upheld the proposed action. On April 15, 1992,
however, the parties entered into a last-chance agreement, after the
petitioner admitted that he was an alcoholic. The petitioner, in the
agreement, was informed of the attendance standards he had to meet.
On December 18, 1992, management again proposed the petitioner's
removal for failing to adhere to the last-chance agreement. The charges
included unacceptable attendance by the petitioner. The proposed removal
was reduced to a 14-day suspension through the grievance process. On
October 21, 1993, petitioner's removal was again proposed because of
attendance problems. On February 4, 1994, the agency issued a decision
removing the petitioner, effective February 12, 1994. Petitioner again
filed a grievance and, by arbitration decision dated January 9, 1995,
his removal was reduced to a 249-day suspension. Upon his return to
work, he was assigned to the General Mailing Facility (GMF) under the
supervision of A-1. On January 27, 1995, he had a non-scheduled absence.
Because petitioner indicated that his absence was due to a �job related
panic attack,� A-1 testified that she contacted petitioner at his home
in order to clarify the situation. According to A-1, she was not aware
of any disabling condition on petitioner's part.
The next day, A-1 and a steward met with petitioner and the non-scheduled
absence was subsequently changed to sick leave. On January 30, 1995,
petitioner requested a change of his work location from the GMF to the
Terminal Annex where he had previously worked. According to petitioner,
�this is needed because of a stress related condition, which is caused
when commuting in congested areas.� The agency requested medical
documentation from petitioner to support his transfer request, but he
never provided any documentation. Therefore, his request was denied.
In August 1995, petitioner filed a formal complaint concerning the
agency's refusal to change his work location.
In April 1995, A-1 was placed in a detail. A-2 became petitioner's
Acting Supervisor. On June 8 and 9, 1995, the agency charged petitioner
with being AWOL when he failed to come to work. A-2 testified that,
based on petitioner's failure to follow proper procedures, he denied his
�after the fact� request for leave. A-2 also indicated that he asked
petitioner for medical documentation that would support his two-day
absence, but petitioner never provided it. Subsequently, A-2 recommended
that petitioner be removed. On July 11, 1995, the agency proposed the
petitioner's removal for (1) being absent without official leave (AWOL);
and (2) failing to be regular in attendance (i.e., taking excessive
unscheduled sick leave and requesting excessive emergency annual leave).
According to A-2, �This is when I first learned about his anxiety problems
which were apparently caused from [sic] when he was in the military.�
With respect to the agency's second charge, the record contains the
following examples of petitioner's irregular attendance:
(1) January 27, 1995 - 8 hours sick leave taken in conjunction with
non-scheduled days;
(2) March 6-14, 1995 - 56 hours of sick leave taken in conjunction with
non-scheduled days;
(3) March 20-23, 1995 - 32 hours leave without pay (LWOP) taken in
conjunction with non-scheduled days;
(4) May 18 - 19, 1995 - 16 hours emergency annual leave (EAL) taken in
conjunction with non-scheduled days;
(5) May 25, 1995 - 8 hours EAL taken in conjunction with non-scheduled
days; and
(6) June 7, 1995 - 8 hours sick leave.
On September 26, 1995, the agency issued a decision removing petitioner,
effective September 30, 1995. Petitioner filed a formal complaint
regarding his removal. Subsequently, he filed an appeal with the Board.
Petitioner alleged that he was removed because of his sex, age, disability
(Post Traumatic Stress Disorder (PTSD)), and in retaliation for engaging
in previous EEO activity.
At the outset, the MSPB Administrative Judge (AJ) ruled that the
hearing would only address petitioner's September 1995 removal.
All other matters, according to the AJ, were deemed beyond the Board's
jurisdiction. The AJ found that petitioner �vaguely� testified that
he was incapacitated by an attack of PTSD on June 8-9, 1995, and that
his father or his brother should have called in for him. However,
the AJ found that he presented no medical evidence to substantiate this
contention.<1> Also, the AJ found that petitioner's claim was lacking
in credibility.<2> Petitioner, according to the AJ, was counseled
repeatedly about his unacceptable attendance and received progressive
disciplinary actions for unacceptable attendance and AWOL's (the most
severe being a 249-day suspension for unacceptable attendance). The AJ
found that it was reasonable for the agency to place petitioner in an
AWOL status. With respect to the agency's second charge, the AJ found
that the agency presented undisputed documentation which indicated that
petitioner was absent as charged on the above dates. Consequently,
the AJ found that the agency, by a preponderance of the evidence,
established that petitioner's attendance was irregular.
With respect to petitioner's contention that his removal was based on his
age, sex, disability or in retaliation for engaging in prior EEO activity,
the AJ found that the agency demonstrated, by preponderant evidence,
that there were legitimate, nondiscriminatory reasons for its removal
of the petitioner, i.e., the sustained charges and specifications.
Likewise, the AJ found that petitioner did not establish pretext.
The AJ noted that, with the exception of the bare assertion, there was
no evidence of age or sex discrimination presented. With respect to
petitioner's claim of retaliation, the AJ found no persuasive evidence
that management officials were motivated by animosity toward petitioner
for filing complaints of discrimination. The AJ found that petitioner's
removal was solely the result of his repeated attendance deficiencies.
Finally, with respect to petitioner's claim of disability discrimination,
the AJ found that he was a person with a disability; however, he did not
find a connection between his impairments and his inability to commute
to work on a regular basis.<3> The full Board issued a decision, dated
January 28, 1999, that denied petitioner's petition for review.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals where 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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). 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. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979); Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976);United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981);
and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981).
To the extent petitioner maintained that he was denied a reasonable
accommodation, the record indicates that, on at least two occasions in
January and June 1995, management officials requested medical information
from him regarding alleged �job related panic attacks.� Petitioner,
on both occasions, failed to provide the requested information.
Accordingly, we do not find that the agency was under any obligation
to provide petitioner with an accommodation or to excuse his absences.
Furthermore, we note that neither the Rehabilitation Act nor the Americans
With Disabilities Act precludes an agency from enforcing standards of
conduct, as long as such standards are job-related, consistent with
business necessity, and enforced uniformly among all employees. The
Commission's Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities, No. 915.002 (March 25, 1997) states
that "an employer may discipline an employee with a disability for
engaging in . . . misconduct if it would impose the same discipline
on an employee without a disability." Id. at 29. In the present case,
the agency terminated the petitioner for consistently violating its time
and attendance policies. This is clearly a standard that is job-related
and consistent with business necessity.
CONCLUSION
Based upon a thorough review of the record and for the following reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination.
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
_____02-13-01_________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the agency and the MSPB on:
__________________
Date
______________________________
1Although he did not submit medical evidence to substantiate his
contention that he was incapacitated by an attack of PTSD during June 8-9,
1995, petitioner did provide a January 8, 1993 letter from a Department
of Veterans Affairs psychiatrist, B-1, that indicates he was hospitalized
from December 10, 1992 through January 8, 1993 for bipolar affective
disorder and was placed on lithium carbonate. According to B-1, �He
is still quite sensitive to stress and reducing the stress of frequent
driving will allow him to sustain a more complete and rapid recovery
from his problem of depression and anxiety.� A second letter from B-1,
dated the same day, indicates that petitioner �began to show symptoms of
mania in November 1992 which include anger, irritability, poor judgment,
hyperactivity, and paranoia. I am certain that this had a dramatic
effect on his work performance during November and early December 1992.
I expect his performance to be much improved as a result of his current
treatment.� These letters were not addressed to any agency official and
there is no evidence they were ever submitted to any management official.
The AJ indicated that these documents were submitted �post-hearing.�
2Among other things, the AJ noted that the petitioner's father and brother
were at the hearing, but were never asked to testify about petitioner's
medical condition on June 8 - 9, 1995.
3Although petitioner maintained that his PTSD led to the absences with
which he was charged, the AJ noted that he also testified that many of
his absences were attributable to personal problems having nothing to do
with his disability. The AJ also noted petitioner's failure to explain
how his PTSD prevented him from commuting to work on certain days, but
not others. He also found that petitioner's claim was inconsistent with
the fact that he also had serious attendance problems when he worked
at the Terminal Annex, which he stated was an easy commute. Finally,
the AJ indicated that the petitioner failed to present medical evidence
which would support his claim that his medical condition of PTSD adversely
impacted his ability to commute to work on a regular basis.