Sedor v. Frank

• Decision Date: 12 December 1994
• Docket Number: No. 498,D,498
• Citation: 42 F.3d 741
• Parties: 3 A.D. Cases 1646, 7 A.D.D. 768, 6 NDLR P 29 Richard SEDOR, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, and Postal Service, Defendants-Appellees. ocket 93-6063.
• Court: U.S. Court of Appeals — Second Circuit

Page 741

42 F.3d 741

3 A.D. Cases 1646, 7 A.D.D. 768, 6 NDLR P 29

Richard SEDOR, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, and Postal Service Defendants-Appellees.

No. 498, Docket 93-6063.

United States Court of Appeals Second Circuit.

Argued Oct. 13, 1994.

Decided Dec. 12, 1994.

Heidi E. Lichthardt, New York City (Arthur S. Linker, Rosenman & Colin, on the brief), for plaintiff-appellant.

Carl J. Schuman, Asst. U.S. Atty., Hartford, CT (Christopher F. Droney, U.S. Atty. for the D. Conn., New Haven, CT, on the brief), for defendants-appellees.

Before: OAKES, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Richard Sedor appeals from a final judgment of the United States District Court for the District of Connecticut, Joan Glazer Margolis, Magistrate Judge, dismissing his suit against defendants Anthony M. Frank, as Postmaster General, and the United States Postal Service (collectively the "Postal Service" or "Service") alleging the termination of Sedor's employment in violation of the Rehabilitation Act of 1973, see 29 U.S.C. Sec. 701 et seq. (1988 & Supp. V 1994) (the "Rehabilitation Act" or "Act"). Following a bench trial held before the magistrate judge on consent of the parties, see 28 U.S.C. Sec. 636(c)(1) (1988), the magistrate judge

found that Sedor had not proven his claim (1) because he was not "otherwise qualified" for the position in which he had been employed, and (2) because he was not discharged solely by reason of his disability but rather was discharged at least in part on account of his extended and undocumented absence from work. Sedor challenges these findings on appeal. We affirm the judgment on the ground that Sedor did not show that his employment was terminated solely by reason of his disability.

I. BACKGROUND

Sedor, who has a learning disability, was hired by the Postal Service in Hartford, Connecticut, in 1982. He was discharged in 1988 and, after pursuing administrative remedies, commenced the present suit under the Rehabilitation Act. Some of the facts were stipulated prior to trial, and the magistrate judge's findings as to the events underlying this action, as contrasted with the inferences to be drawn from them, are not challenged on this appeal. The events were as follows.

Since his childhood, Sedor has had great difficulty understanding written information. It is preferable that he be given information through oral instructions, and, if he is to comprehend, the information must be broken into small bits, presented in a step-by-step fashion, and repeated. In spite of this challenge, Sedor earned a high school diploma by taking adult education courses for seven years while working at a variety of jobs.

The Postal Service hired Sedor in 1982 as part of a program for the employment of persons having severe handicaps. After satisfactorily completing a six-month probationary period, Sedor was made a "career" employee. During the probationary period and thereafter, the Service made various accommodations for his disability. He was assigned to the day shift, which had significantly fewer employees than the evening and night shifts and was less stressful because it dealt with only third-class and non-preferential mail. Instructions in the initial orientation program, including explanation of the Service's sick-leave policy, and most work instructions were given to him orally. Several individuals, including Kenneth Pennington, the supervisor who eventually dismissed Sedor, helped to clarify instructions for Sedor and assisted him in other ways. For example, Pennington put up signs identifying towns by the first three digits of their zip codes in order to make it easier for Sedor to understand. The Connecticut Division of Vocational Rehabilitation also provided Sedor with a "job coach."

Nonetheless, Sedor's employment was beset with problems. Some stemmed from insensitivity on the part of fellow employees whose conduct "barely reached tolerable maturity levels for junior high school students." Magistrate Judge's Memorandum of Decision dated February 10, 1993 ("Decision") at 21. Other problems were due to Sedor's own behavior and attitude. The magistrate judge found, for example, that Sedor had undermined the job-coach program by approaching it with the resentment of one having a victim mentality and the view that he was entitled to special privileges. Id. at 21-22; see also id. at 15 n. 13 (psychologist who had treated Sedor for some eight years described him as "ha[ving] serious psychological problems that have resulted in various difficulties over the years--depression, paranoia, alcohol abuse, interpersonal difficulties, and a rigid concrete sense of being a victim and hence entitled to all types of special privilege."). Sedor complained frequently about his job assignments and had poor interpersonal skills. His " 'game' " plan was to " 'bug people long enough [so] they'll give me my way.' " (Trial Transcript ("Tr.") Dec. 12, 1991, at 160, 161-62 (testimony of Spiro Makris, representative of Connecticut Division of Vocational Rehabilitation, quoting Sedor)). The Postal Service solved some of the frictions between Sedor and his coworkers by moving him to new positions. Eventually, however, the Service " 'didn't have any other place to use him.' " Decision at 10 (quoting testimony of Pennington).

Throughout his employment with the Postal Service, Sedor also had numerous attendance-related difficulties. Pennington had " 'regular' " and " 'frequent[ ]' " oral discussions with him about his absences and about the Service's requirements for the documentation of absences. id. at 25 (quoting testimony In November 1987, Sedor was involved in an automobile accident and was briefly hospitalized. He testified that he was disoriented and that he therefore took approved medical leave until mid-January 1988. Id. at 25. Sedor returned in January, but on February 3 he failed to appear for work as assigned. Sedor testified that he had advised Pennington of a court appearance scheduled for February 3; that he spoke to Pennington on that day and on February 4; and that in the latter conversation he told Pennington he was not physically or mentally well enough to return to work, and Pennington told him to call in "like every two weeks" (Tr. Dec. 9, 1991, at 105) and to bring his documentation when he "g[o]t [his] act together" (id. at 104). Pennington testified that no such conversations had occurred and that Sedor had given no explanation for these absences. Thus, on February 3 and again on February 5 (Sedor was not scheduled to work on February 4), Pennington prepared forms indicating that he had not been notified of the reasons for Sedor's absences and giving Sedor seven days to provide explanations. According to Pennington's testimony, Sedor telephoned the Postal Service on February 5 and left a message simply that he might not come to work for a week. He did not send or bring any documentation.

of Pennington). On at least one prior occasion, Sedor's failure to provide documentation had caused him to be disciplined. Id. at 10, n. 9.

On February 22, when Sedor still had not returned to work or provided documentation, Pennington sent him a form letter stating that Sedor had been absent since February 3, detailing the documentation requirements for sick leave, and warning that failure to comply could result in discharge. The letter stated that if the absence was due to illness, the employee was required within five days of receipt of the letter to furnish a doctor's letter specifying the illness and treatment, an explanation of the inability to perform employment duties, and an estimated date for return to work. Sedor telephoned Pennington after receiving this letter.

Sedor testified that in that conversation, Pennington told him just to bring in his documentation when he felt better, and he told Pennington he hoped to return to work sometime in March. Pennington, in contrast, testified that when Sedor called, Pennington reminded him to bring in his documentation, and Sedor said he would be returning to work the next day. Sedor did not return to work the next day, however, nor did he furnish his medical documentation.

On March 22, when Sedor still had neither returned to work nor supplied any medical documentation, the Postal Service sent him a second letter, stating that it was preparing to terminate his employment because of his extended absence without permission since February 3. The letter instructed Sedor to contact the Service no later than March 30 to set up an appointment to discuss the matter. A meeting was held on April 6, and at that time Sedor first presented documentation with respect to his absence--two letters from his doctor and one from his psychologist. The psychologist sent a second letter two days later.

Sedor eventually appeared for work on approximately April 9, after a 51-day absence. On April 14, however, Pennington sent Sedor notice that the Service was terminating Sedor's employment effective May 23, 1988. Pennington testified that he had never allowed an employee to be absent without leave for such an extended period and had not discharged Sedor sooner only because Sedor was part of a special program and Pennington wanted to meet with him before taking any action. Pennington also testified that if Sedor had provided proper and timely documentation, the decision would have been different.

After a four-day bench trial, the district court concluded that Sedor had failed in two respects to establish that his discharge violated the Rehabilitation Act. First, the court found that Sedor was not "otherwise qualified" for the job within the meaning of the Rehabilitation Act, 29 U.S.C. Sec. 794(a), because the Postal Service had shown that it was not possible to accommodate his disability through reasonable efforts. Decision at 20-23. Second, the court found that Sedor had not been discharged "solely by reason of As to...