Hailey v. USPS (Appeal No. 0120110260)(7/12/11)
Stacey L. Hailey v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Eastern Area), Agency. Request No. 0520110439 and Appeal No. 0120110260
Hearing No. 430-2009-00136X
Agency No. 4C-250-0051-08
DENIAL
Complainant timely requested reconsideration of the decision in Stacey
- Hailey v. U.S. Postal Service, EEOC Appeal No. 0120110260 (March
30, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
The previous decision initially found that the EEOC Administrative Judge
(AJ) assigned to this case did not abuse her discretion in remanding the
matter to the Agency as a sanction for Complainant’s failure to answer
interrogatories and provide requested documents. The previous decision
then found that the Agency did not err in determining that it did not
discriminate against Complainant on the basis of disability (knee,
back, anxiety, depression) when it denied him light duty and removed
him because he was absent from work on numerous occasions. The previous
decision also found that the Agency did not err in determining that it
did not retaliate against Complainant for prior EEO activity when it
issued a letter of demand and collected monies from him.
In his initial appellate brief, Complainant’s attorney only argued
that the AJ had abused her discretion in sanctioning Complainant.
Complainant’s attorney did not discuss why the Agency’s finding of
no discrimination was in error.
In the request for reconsideration, Complainant’s attorney argues for
the first time that the fact finder in this matter should have analyzed
the disability discrimination claims under a reasonable accommodation
legal framework, rather than a disparate treatment framework.
Specifically, Complainant’s attorney maintains that the previous
decision “does not analyze the Complainant’s request for accommodation
. . . though these were the identified and accepted issues in the case.”
In addition, Complainant’s attorney argues in his request for
reconsideration that the previous decision clearly erred in not addressing
Complainant’s claim that the Agency’s failure to accommodate his
depression resulted in his numerous absences that ultimately led to
his removal. He maintains that the previous decision erred in finding
that Complainant notified the Agency of his depression only after the
absences had occurred.
We remind Complainant that a “request for reconsideration is not
a second appeal to the Commission.” Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9,
1999), at 9-17.
A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous
interpretation of material fact or law; or (2) will have a substantial
impact on the policies, practices, or operations of the Agency. We find
that the previous decision accurately stated the issues that were accepted
by the Agency for investigation, and those issues did not explicitly
include any denial of reasonable accommodation claims.
The record does not show that Complainant ever attempted to amend the complaint to include a denial of reasonable accommodation claim. Furthermore, the Agency’s final decision clearly and explicitly utilized a disparate treatment framework in finding no discrimination on the disability claims.
Yet on appeal, Complainant’s attorney was silent on the inappropriateness of
the disparate treatment framework. It is only now that Complainant’s
attorney challenges the framing of the disability discrimination issues.
Complainant had multiple opportunities throughout the federal sector
administrative process to challenge the framing of the issues, but elected
not to. We will not find clear error in our previous decision when none
was ever previously highlighted by Complainant’s attorney.
We now turn to Complainant’s argument that, in essence, the previous
decision should have addressed the claim that the Agency failed to
reasonably accommodate Complainant’s depression to enable him to meet
the attendance conduct standards. Complainant appears to argue that the
onus was on the Agency to find out that he was in need of an accommodation
for his depression. We disagree. “Generally, the individual with a
disability must inform the employer that an accommodation is needed.”
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, Number 915.002, at 3 (Oct. 17,
2002). The record shows that Complainant never provided any reasons,
explanations, or accommodation requests for his depression, whenever
managers interviewed him about his absences.
It is undisputed in the record that Complainant did not notify the
relevant, responsible Agency officials about his depression until after
the absences had already occurred.1 Our Enforcement Guidance states
that an employer does not have to withhold discipline or termination
of an employee who, because of a disability, violated a conduct rule
that is job-related for the position in question and consistent with
business necessity. Id. at 51. “Since reasonable accommodation is
always prospective, an employer is not required to excuse past misconduct
even if it is the result of the individual’s disability.” Id.
Therefore, even if Complainant’s depression caused him to be absent on
numerous occasions, his failure to request a reasonable accommodation
for his depression before or immediately after the absences occurred
(such as during the interviews with management) means that the Agency
did not have to withhold discipline or termination.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. § 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 0120110260 remains
the Commission’s decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.
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
____7/12/11______________
Date
1 Complainant does not dispute that he had submitted medical documentation
in 2004 to an Agency official who was no longer with the Agency when
Complainant was absent from work in 2007 and 2008. The actual responsible
management officials in this matter denied in their affidavits that
they had prior knowledge of Complainant’s mental impairments before
his absences.
2
0520110439
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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