0120072094
09-19-2007
William C. Hogan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William C. Hogan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072094
Agency No. 4H300016806
DECISION
On March 21, 2007, complainant filed an appeal from the agency's February
14, 2007, final decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination 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. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Cumberland Carrier Annex facility
in Atlanta, Georgia. On August 17, 2006, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of
disability (Obsessive Compulsive Disorder and Co-Morbid disorders)
and age (D.O.B. 09/05/63) when: on April 11, 2006, and May 9, 2006,
has was not provided a reasonable accommodation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that he was subjected to
discrimination as alleged. Complainant appeals the FAD in the instant
case.
On appeal, complainant only argues that the agency repeatedly failed to
accommodate him from his initial request contained in a January 1999
Settlement Agreement. Further, complainant stated that the nature of
his impairment is such that he cannot communicate to his supervisors when
he needs an accommodation. We note that complainant does not argue that
the agency erred in finding that he was not discriminated against on the
basis of his age. The Commission exercises its discretion to review only
the issue specifically raised in complainant's appeal. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
9-10 (November 9, 1999). Therefore, on appeal, the Commission shall
only address complainant's claim alleging that he was denied a reasonable
accommodation in violation of the Rehabilitation Act.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de
novo review by the Commission. 29 C.F.R. � 1614.405(a); EEOC Management
Directive 110, Chapter 9, � VI.A. The record reflects the following:
on April 11, 2006, complainant's manager (M1) held a discussion with
complainant in the presence of his union steward. Based on complainant's
affidavit, complainant provided that M1 stated that complainant that
wasted too much time. Complainant stated that the comments embarrassed
him. In complainant's formal complaint, complainant stated that on
April 11, 2006, M1 stated that he did not want complainant to "pull
his route down," however, when someone was told to pull complainant's
route, the individual stated "why don't you pull your own route down."
M1 stated in his affidavit that he informed complainant that he did not
want him to "pull his route down" since he had medical limitations as a
result of a shoulder injury. Complainant also testified in his affidavit
that he could not "pull his route down" because of a shoulder injury.
Complainant provided in his affidavit that the incident with M1 "caused
[his] heart to pound; head to spin and that [his] mouth became dry" and
that he suffered a panic attack. On May 9, 2006, complainant carried a
dispatch to another postal store. While at the postal store, complainant
alleged that a supervisor (S1) treated him unprofessionally by repeatedly
saying "good-bye [complainant's name]" in order to hurry complainant out
of the building. Complainant further testified in his affidavit that S1
walked behind him in order to rush him out of the facility. S1 stated in
her affidavit that approximately fifteen (15) minutes after complainant
arrived she heard him talking to a clerk. S1 testified that she asked
complainant what route he was carrying but complainant ignored her.
After complainant ignored S1's comments, she asked complainant to leave.
Complainant continued to ignore her. When complainant decided to leave,
S1 testified in her affidavit that she walked behind him but only to walk
in the same direction, not to hurry complainant. Complainant claimed
he was embarrassed by her actions because other employees were watching
and as a result of S1's actions he experienced a panic attack where he
felt that he was about to die since his heart was pounding, his mouth
became dry and he hyperventilated.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). As a threshold matter, complainant must establish that he is an
"individual with a disability." 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. Interpretive Guidance on
Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. �
1630.2(i).
A reasonable accommodation may consist of modifications or adjustments
to the work environment or to the manner or circumstances under which
the position held is customarily performed that enables a qualified
individual with a disability to perform the essential functions of
that position. 29 C.F.R. � 1630.2(o)(ii). Complainant may use "plain
English" and need not mention the Rehabilitation Act or use the phrase
"reasonable accommodation" when requesting a reasonable accommodation.
See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, No. 915.002, Question
1 (as revised October 17, 2002) ("Reasonable Accommodation Guidance").
The Rehab Act requires an agency to provide reasonable accommodation to
qualified individuals with disabilities who are employees or applicants
for employment, unless to do so would cause undue hardship. Reasonable
Accommodation Guidance.
Assuming, arguendo, that complainant established that he is a qualified
individual with a disability, we find that complainant has failed to
establish that the agency denied him a reasonable accommodation.1
Complainant contends on appeal that he requested a reasonable
accommodation prior to and up to when he entered into a settlement
agreement with the agency in January 1999. We note that the record
contains three settlement agreements, which are dated January 1999, July
2000, and July 2003.2 Complainant contends in his affidavit that the
agency failed to provide him with any accommodation. We note, however,
that it is unclear from the record if complainant requested a reasonable
accommodation. The terms of the settlements agreements appear to have
been consolidated in the July 2003 settlement agreement, which provides
in relevant part, for a process to address any accommodation requests that
complainant may have; allow complainant to use sick leave for his illness;
allow complainant to have union representation when management discusses
his job performance or disciplinary action; educate all supervisors and
managers about complainant's condition and:
7. Requests for reasonable job accommodations can be
made by a family member, friend, health professional or other
representative-advocate of [complainant];
14. If and when complainant has a panic attack, complainant
can go to a designated place where he can rest, cry, and/or regain
his composure, to talk with supportive co-workers or make phone
calls to obtain personal or professional support. If the panic
attack lasts for more than 20 minutes, [complainant] and/or his
representative or family member will make a request for leave and
his family will be contacted to pick him up from the station.
Assuming that complainant requested a reasonable accommodation when
he entered into the January 1999 settlement agreement, we find that
complainant failed to prove that the agency denied him reasonable
accommodations on April 11, 2006 and May 9, 2006. We note that the terms
of the settlement agreements do not address whether M1 or S1 or managers
were prohibited from speaking to or addressing complainant's behavior.
Further, according to complainant's formal complaint, M1 had a union
steward present when allegedly discussing his slow pace of work, pursuant
to the terms of the settlement agreements. With regard to the comment
made by M1 that complaint should not "pull his route" and S1's comments
for complainant to return to leave, we find that neither of these comments
violated the agency's obligations in the settlement agreements or can be
construed to be in a denial of a reasonable accommodation. The settlement
agreements provide complainant the opportunity to take time during a panic
attack. Complainant has not alleged that either S1 or M1 prevented him
from doing so. Additionally, M1 and S2 both provide that they were not
aware that their actions caused complainant to experience a panic attack.
Complainant provides on appeal that his condition prevents him from
informing management about his needs, however, the July 2003 settlement
agreement provides that others can request accommodations in his stead.
The record is void of any evidence to show that complainant attempted
to contact others to help him inform the agency of his panic attacks on
April 11, 2006 or May 9, 2006. Therefore, we find that the agency did
not fail to provide complainant with a reasonable accommodation.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the FAD
finding that complainant failed to establish by a preponderance of
the evidence that the agency denied him a reasonable accommodation as
he alleged.
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
___09/19/07_______________
Date
1 For analytical purposes only, we assumed that complainant was an
individual with a disability as alleged.
2 We note that since it appears that complainant is alleging that a
subsequent act of discrimination violated the settlement agreements, we
shall evaluate the merits of the discrimination claim, rather than whether
the agency breached the settlement agreement. 29 C.F.R. � 1614.504(c).
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0120072094
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072094