42 F.3d 741 (2nd Cir. 1994), 498, Sedor v. Frank

Docket Nº498, Docket 93-6063.
Citation42 F.3d 741
Party NameRichard SEDOR, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, and Postal Service, Defendants-Appellees.
Case DateDecember 12, 1994
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

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42 F.3d 741 (2nd Cir. 1994)

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

December 12, 1994

Argued Oct. 13, 1994.

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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

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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

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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.

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.

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...

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