01A30334
07-23-2003
Stephen A. Cook Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen A. Cook Sr. v. United States Postal Service
01A30334
07-23-03
.
Stephen A. Cook Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30334
Agency No. 1K211000301
Hearing No. 120-A2-1137X
DECISION
BACKGROUND
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 mail-handler at the agency's
Easton, Maryland Processing and Distribution facility, filed a formal
EEO complaint on December 22, 2000, alleging that the agency had
discriminated against him on the basis of disability (major depression)
when, on July 26, 2000, he was issued a notice of removal for failure to
comply with the terms of a Last Chance Agreement. The agency accepted
the complaint for investigation on February 13, 2001. 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 April 1998, complainant was removed for use of illegal drugs.
After a grievance was filed appealing his removal, complainant signed
a Last Chance Agreement with the agency. The Last Chance Agreement
consisted of 15 terms and conditions that complainant was to follow in
order to remain employed by the agency. He agreed that he understood
the conditions set forth, and that he was mentally and physically fit
so as to understand the agreement in its entirety. Terms and conditions
relevant to this appeal included:
Removal if complainant did not comply with the provisions stated
therein, as it was his �last chance�;
A 36 month probationary period effective the date of the signing of
the agreement;
Consent to maintain satisfactory attendance during the 36 month
probationary period, where satisfactory attendance means �no more than
three (3) unscheduled absences during any six (6) month period and no
instances of AWOL�;
Unscheduled absences are ��any absences not scheduled and approved in
advance of grievant's scheduled reporting time' and includes...tardiness,
emergency Annual Leave, Sick Leave, Leave without Pay and failure to
report/remain as scheduled for holiday and/or overtime work�;
Consent to provide medical documentation that states a diagnosis,
prognosis and that complainant was incapacitated for work;
Removal if the complainant failed to meet any attendance or work
performance requirement during the probationary period.
On July 26, 2000, Complainant was notified that he was to be removed
from the agency on September 1, 2000 for failure to comply with the
terms and conditions of the Last Chance Agreement. The notice cited
48 instances when complainant was late or failed to provide acceptable
medical documentation for sick leave. The record shows that complainant
provided documentation disputing eight (8) of those instances.
The AJ concluded, viewing the evidence in a light most favorable to
the complainant, that complainant could not prove, by a preponderance
of the evidence, that the agency unlawfully discriminated against him.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination based on disability. Specifically, the AJ found
that complainant failed to demonstrate that he is a qualified person
with a disability. The AJ concluded that the psychologist notes only
briefly summarized the difficulties that complainant experienced and did
not address the duration, severity or nature of the impairment nor the
long term or expected impact of the impairment. The AJ determined that
complainant did not proffer enough evidence of substantial limitation of
a major life activity. The AJ also concluded that although complainant
disputed some of the cited attendance instances as being untrue, there
were still enough unchallenged issues that violated the terms of the
agreement.
The agency's final order implemented the AJ's decision. Complainant
filed a timely appeal, but failed to provide any statement on appeal.<1>
The agency requests that we affirm its final order.
FINDINGS AND ANALYSIS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. 1614.109(g). This regulation is patterned after the
summary judgement procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The United States Supreme Court has held that
summary judgment is appropriate where a court determines that given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment the
court's role is not to weigh the evidence, but rather to determine whether
there are genuine issues of fact for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage, and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate as there are no
genuine issues of material fact in dispute. We find that the AJ properly
summarized the relevant facts and referenced the appropriate regulations,
policies and laws.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
The AJ correctly determined that the complainant failed to establish
that he is an individual with a disability within the meaning of the
Rehabilitation Act. Under the Commission's regulations, an "individual
with a disability" is one who: (1) has a physical or mental impairment
that substantially limits one or more major life activities; (2)
has a record of such impairment; or (3) is regarded as having such an
impairment. 29 C.F.R. 1630.2(g). An individual is substantially limited
in his ability to perform a major life activity if he is unable to perform
that activity or is significantly restricted as to the condition, manner,
or duration under which he can perform that activity as compared to the
average person in the general population. 29 C.F.R. 1630.2(j)(1). Major
life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working. 29 C.F.R. 1630.2(i). Other major life activities
include sleeping and concentrating. See EEOC Enforcement Guidance
on the Americans with Disabilities Act and Psychiatric Disabilities
(Guidance on Psychiatric Disabilities) (March 25, 1997), at question 3.
Assuming arguendo that complainant is disabled, the agency has
proffered a legitimate, non-discriminatory reason for complainant's
removal. The agency cited 48 instances of absences. Complainant only
disputes eight (8) of those absences. He argued that many of the cited
instances were covered by a signed leave slip. The agency proffered
the leave slips and attendance records of complainant to support its
conclusion that complainant did not have advance approval of his leave.
Complainant's Supervisor of Distribution Operations (SDO) stated that
she signed the leave slips for pay purposes only. She also stated that
the FMLA certification forms provided by complainant, without further
medical documentation did not substantiate his absences. Complainant
should have been aware of this need for medical documentation, as the
FMLA certification forms specifically state �medical documentation
is required.� The agency concluded therefore that complainant was in
violation of his Last Chance Agreement because he surpassed the amount
of absences allowed without advance approval. In addition, SDO stated
that complainant performed all of his duties at work and sought no
accommodation for his alleged disability. Complainant's Manager of
Mail Processing Operations (MPO) stated that had complainant made his
supervisors aware of his recent medical conditions some allowances could
have been made. It was only after his removal, however, that complainant
offered statements from his psychologist and doctor about his condition.
MPO reiterated that it was due to complainant's failure to meet the
requirements of the Last Chance Agreement that he was discharged.
Complainant does not show any evidence that the agency's action was
pretext for discrimination.
After a careful review of the record, the Commission finds that grant of
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.
Complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's protected
classes. The AJ's finding of no discrimination is therefore AFFIRMED.
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
___07-23-03_______________
Date
1Complainant requested an extension of time to file a brief in support
of his appeal on November 20, 2002. This request was denied for
untimeliness, as a brief or statement in support of his appeal was
due by November 20, 2002. Complainant did send a statement concerning
his appeal dated November 18, 2002, however this letter was postmarked
January 9, 2003.