0120101407
09-14-2012
Thomas C. Elias, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Thomas C. Elias, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120101407
Hearing No. 532-2009-00011X
Agency No. 1C431003008
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 8, 2010 final decision concerning his equal employment opportunity (EEO) complaint. At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Processing & Distribution Center facility in Columbus, Ohio. For the reasons that follow, we AFFIRM the Agency's final decision (FAD).
On July 1, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability and age (47) in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), 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. when he was issued a Notice of Removal dated March 10, 2008, on or around March 12, 2008.
At the conclusion of the EEO investigation, Complainant was provided a copy of the investigative file. Although Complainant initially requested a hearing, on December 30, 2009, the EEOC Administrative Judge (AJ) dismissed the Complainant, and remanded it back to the Agency for issuance of a FAD after Complainant failed to cooperate and respond to the AJ's Order to Show Cause. The Agency issued a final decision (FAD). In its FAD, the Agency found that, Complainant did not establish a prima facie case of age discrimination. The Agency found that while Complainant established that he belongs to a protected age group by virtue of his age, and that he was subjected to an adverse employment action - issuance of a removal notice - he did not establish that similarly situated employees, not in his protected class, were treated more favorably than he was under similar circumstances. Additionally, the FAD held that Complainant made no showing that his age made a difference in the outcome of the Agency's decision to remove him. With respect to Complainant's allegations of disability discrimination, the FAD held that Complainant failed to establish that he was treated differently than similarly situated individuals not within his protected group, or that the Agency failed to make him a needed reasonable accommodation which resulted in adverse action.
On appeal, Complainant requests that the Commission reverse the FAD's finding that he was not subjected to unlawful discrimination based on his age and disability. Complainant contends that he was issued a notice of removal because of his disability which prevented him from working a regular schedule. Complainant has also asked that the Commission appoint him representation to assist with his appeal of the FAD.
Record evidence establishes that Complainant's Supervisor (S1) issued similar disciplinary action to eleven employees, including Complainant, under similar circumstances in Fiscal Year 2008, and charged them with unsatisfactory attendance. Three of the eleven employees were outside his protected age group. Additionally, S1 testified that he was not aware of Complainant's age at the time the removal notice was issued, which makes it unlikely that his decision was motivated by this factor.
With respect to Complainant's allegation that he was subjected to unlawful disability discrimination because the Agency denied him FMLA leave, the record reflects that Complainant failed to demonstrate that he was denied a reasonable accommodation. Although permitting the use of accrued paid leave or unpaid leave is a form of reasonable accommodation,1if the disability or need for accommodation is not obvious, the employer may ask the individual for reasonable documentation to establish that the individual has a disability and the disability necessitates reasonable accommodation, and if the individual refuses to provide the reasonable documentation requested by the employer, then he is not entitled to reasonable accommodation. Id. The record reflects that Complainant was advised that his WH-380 (Certification of Health Care Provider) did not indicate a need for FMLA protection at the time submitted because it indicated the complainant was not currently incapacitated and did not indicate any dates of recent incapacitation. We find that Complainant was adequately informed that he did not comply with the Agency's request for reasonable documentation to establish that he was entitled to a reasonable accommodation.
Additionally, the record reflects that Complainant failed to establish that the Agency's asserted reason for issuing him a notice of removal -- his unexcused absence from work from January 26, 2008 through February 14, 2008 - was but mere pretext for unlawful discrimination. The record reflects that S1 explained to Complainant and his Union Representative that he was at risk for issuance of corrective action regarding his attendance. Complainant was given one pre-disciplinary interview and issued four separate corrective actions for unsatisfactory attendance and improper conduct. We find that the evidence is sufficient to support the Agency's assertion that Complainant was removed as a result of his attendance record, and not for unlawful discriminatory reasons.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__9/14/12________________
Date
1 EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation).
2 With respect to Complainant's request that the Commission appoint an attorney to represent him in the instant complaint, we note that the Commission is not authorized to appoint counsel for complainants in the administrative process.
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0120101407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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