Michael D. Sargent v. USPS 01982693 January 5, 2001 . Michael D. Sargent, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 01982693 Agency No. 4E995103495 Hearing No. EEOC 380-97-8069X DECISION Complainant timely initiated an appeal from a final agency decision (FAD), concerning his complaint of unlawful employment discrimination in violation of the Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. § 1614.405.<2> Complainant alleges that he was discriminated against based on disability (epilepsy, alcoholism), when he was removed from his position on May 3, 1995, for alleged misconduct. BACKGROUND The record reveals that complainant, a bulk mail technician, at the agency's Anchorage, AL, facility, filed a formal EEO complaint with the agency on August 18, 1995, alleging that the agency had discriminated against him as referenced above. Believing he was a victim of discrimination, complainant sought EEO counseling and, subsequently, filed a formal complaint on August 18, 1995. At the conclusion of the investigation, complainant was provided a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a decision finding no discrimination, which was adopted by the agency in its FAD. The incidents giving rise to complainant's removal involved obscene telephone calls placed by complainant, from his home, to four different women employed by the agency, while they were at work. According to complainant's notice of removal, dated March 28, 1995, these calls took place between approximately October 1, 1994, and December 8, 1994. It appears that one of the women received at least eight calls, one of the women received two calls, one of the women received one call, and one of the women received an unspecified number of calls. On December 18, 1994, postal inspectors came to his house to question him about the telephone calls. The next day, complainant went to see an EAP counselor with the agency, and he also went to an outpatient clinic. On the advice of both sources, complainant checked in to a hospital and was treated for alcoholism and depression. Sometime in January, he was discharged from the hospital. In a judgement effective March 10, 1995, complainant pleaded guilty to criminal charges against him for the phone calls, involving two counts of harassment for making one or more anonymous or obscene telephone calls or one or more telephone calls that threatened physical injury to the four women, class B misdemenaor offenses under Alaska state law. As a result, complainant was, inter alia, placed on probation for one year, ordered to do 40 hours of community service, ordered to continue treatment for alcoholism, and ordered to have no contact with the women unless with that person's written consent supplied to the prosecutor's office. Complainant was removed from his position on May 3, 1995. Complainant alleged disability discrimination by way of disparate treatment, emphasizing that he felt that certain proffered comparators were not removed for misconduct. Complainant also alleged disability discrimination by way of a failure to accommodate his disability, in that he should have been given a “firm choice” in the form of a last chance agreement in lieu of removal. Complainant also set forth his excellent work record, and argued that this should have been considered by the agency in mitigating his punishment. The AJ found that complainant established a prima facie case of disparate treatment disability discrimination. The AJ found that complainant was a person with a disability and protected by the Rehabilitation Act, citing to complainant's record of epilepsy.<3> He also found that there was some evidence of complainant suffering from alcohol.<4> The AJ further found that complainant was qualified for his position despite his disability, that complainant was terminated from his position for inappropriate conduct, and that there was some evidence that complainant's proferred comparators were not subjected to removal for misconduct. The AJ then concluded that the agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., complainant's obscene telephone calls arguably warranted complainant's removal. The AJ finally found that the comparator evidence was insufficient to demonstrate pretext, emphasizing that these kinds of disciplinary actions for conduct reasons are highly individualized and must rest on their own unique set of facts and circumstances. None of the comparator evidence involved misconduct relating to obscene telephone calls. The AJ thus found that there were significant differences raised in the cases involving the other individuals complainant compared himself to. The AJ further found that complainant “pretty much terrorized four female co-workers with obscene telephone calls” and that the “telephone calls carried explicit sexual assault threats.” AJ Decision at Tr. 119. The AJ thus concluded that the agency's actions were not motivated by an intent to discriminate against complainant on the basis of disability. With respect to the failure to accommodate claim, the AJ found that complainant did not establish a prima facie case, because the agency was not on notice that some accommodation for the complainant's disability of alcoholism was requested or needed prior to the time that the agency issued him his removal notice. The AJ further pointed out that complainant failed to claim any sort of causal link between the alcoholism and the misconduct that he was terminated for. In any event, the AJ concluded that the agency would not have been obligated to forego disciplinary action in this case. The FAD, dated January 18, 1998, adopted the AJ's decision. Complainant makes no new contentions on appeal, and the agency requests that we affirm its FAD. FINDINGS AND ANALYSIS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). Disparate Treatment To establish a prima facie case of disability discrimination under a disparate treatment theory, the complainant must demonstrate: (1) he is an “individual with a disability” as defined in 29 C.F.R. § 1630.2(g); (2) he is a “qualified individual with a disability” as defined in 29 C.F.R. § 1630.2(m); and (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination. See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981). An “individual with a disability” is defined as someone who: (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g)(1)-(3). “Major life activities” include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). After complainant has established a prima facie case, the agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then the complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proferred by the agency was a pretext for discrimination. Id. at 256. Although the initial inquiry of discrimination usually focuses on whether the complainant has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even assuming, arguendo, that complainant could prove that he was a qualified individual with a disability within the meaning of the Rehabilitation Act and establish a prima facie case,<5> as discussed more fully below, we find that he, nevertheless, has failed to prove discrimination. We find that the agency articulated a legitimate, nondiscriminatory reason for complainant's removal, i.e., his record of obscene phone calls. It is thus the complainant's burden to establish by the preponderance of the evidence (more likely than not), that the agency's articulated nondiscriminatory explanation for its action was a pretext for discrimination. In the Commission's view, complainant has failed to meet his burden to show that the agency's articulated nondiscriminatory explanation was pretext. The complainant's comparators are not similarly situated. While two of the proffered comparators were allegedly engaged in harassment, and involved agency employees, none rose to the level of criminal charges, and none appeared to involve obscenity or sexual assault. The AJ found that complainant “pretty much terrorized four female co-workers with obscene telephone calls” and that the “telephone calls carried explicit sexual assault threats.” AJ Decision at Tr. 119. As found by the AJ, there is no indication that the comparators' behavior rose to the gravity of the complainant's harassment in terms of severity and number. One of the comparators was eventually terminated. While it is true that another proffered comparator was charged with criminal wrongdoing, those charges were dropped by the prosecutor's office. See complainant's pre-hearing brief at 2. In addition, that comparator's alleged wrongdoing appears not to have otherwise involved agency employees. While it appears that one comparator was criminally convicted for wrongdoing (attempted sexual assault), there is no indication that agency employees were, in any way, involved or of the number of individuals involved. It is unclear what two of the comparators' alleged wrongdoing involved. Joint Exhibit 1 at 25-26. In addition, we note that complainant's chain of command involved his immediate supervisor, Manager A (second-line supervisor), and Manager B (third-line supervisor). Manager B testified that he made the decision that the appropriate disciplinary action to take against complainant was removal. The removal letter was signed by his immediate supervisor, along with Manager B. Ordinarily Manager A would have signed the removal letter, but she was out of the office at the time the letter was issued. None of complainant's proffered comparators were in the chain of command involving complainant's immediate supervisor and Manager A, or Manager B, with one exception (comparator criminally convicted for wrongdoing, but no indication that agency employees involved). Evidence of discriminatory intent generally relates to the intent (or absence of) of the supervisor(s) who recommended and/or took the complained of action. Therefore, in making an appropriate comparison, the comparator must have been supervised by the same individual as the complainant. Alexander v. Gardner-Denver, 519 F.2d 503 (10th Cir. 1975)(action of a supervisor other than the one who supervised the plaintiff was insufficient evidence of discrimination). Reasonable Accommodation With respect to this issue, the Commission shall assume, for purposes of analysis, that petitioner is disabled. Under the Commission's regulations, an agency is required to make reasonable accommodation of 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. § 1614.203(c). We agree with the AJ's analysis. In addition, we note that the October 1992 amendments to the Rehabilitation Act of 1973 requires application of the employment standards in the Americans with Disabilities Act (ADA) in non-affirmative action situations, and federal agencies must follow the ADA standards. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, at n.2 (March 1, 1999). Under the ADA, agencies may hold employees who are alcoholics to the same qualification standards for employment or job performance as other employees. 29 C.F.R. § 1630.16(b)(4). For this reason, we find that the agency was not required to excuse complainant's misconduct as a form of reasonable accommodation. Stewart v. Department of the Interior, EEOC Petition No. 03980128 (March 11, 1999). Moreover, the Commission has found that the 1992 amendments to the Rehabilitation Act are inconsistent with an employer's obligation to provide a firm choice. See also Brooks v. Small Business Administration, EEOC Petition No. 03980014 (September 24, 1998) (employers not required to excuse violation of uniformly-applied conduct or job performance standards as a form of reasonable accommodation). CONCLUSION The AJ's findings that the agency did not discriminate against complainant, by removing him for his misconduct, are supported by substantial evidence. After a careful review of the record, the Commission finds that the AJ's decision, except as otherwise noted, summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We discern no basis to disturb the AJ's decision. Therefore, after a careful review of the record, including complainant's appeal, the agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the agency's final decision dated January 18, 1998. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0900) 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 January 5, 2001 Date 1The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. 2 On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 29 C.F.R. Part 1614 in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov. 3 Complainant was first diagnosed in 1991 as having epileptic seizures. He was placed on medication for seizures, and in 1992 he had another seizure, and from time to time after that his medication has been changed from one thing to another. He has not had another seizure since the one in 1992 and he is now no longer taking medication for his seizures. 4 Complainant testified that he had a history of drinking alcohol, that he stopped drinking alcohol during the time that he was taking medication for seizures, but that around September of 1994 he began drinking alcohol again after having stopped for about three years. 5 We note in passing that neither the AJ, nor complainant for that matter, for purposes of finding complainant to be a person with a disability, discussed any major life activity for which complainant was substantially limited, had a record of being substantially limited, or was regarded as being substantially limited. The AJ's analysis focused solely on complainant's impairments.