Wimbley v. Bolger

• Decision Date: 06 June 1986
• Docket Number: No. 84-2147-MB.,84-2147-MB.
• Citation: 642 F. Supp. 481
• Court: U.S. District Court — Western District of Tennessee
• Parties: James WIMBLEY, Plaintiff, v. William F. BOLGER, Postmaster General, United States Postal Service, Defendant.

642 F. Supp. 481

James WIMBLEY, Plaintiff, v. William F. BOLGER, Postmaster General, United States Postal Service, Defendant.

No. 84-2147-MB.

United States District Court, W.D. Tennessee, W.D.

June 6, 1986.

Asa Hoke, Memphis, Tenn., for plaintiff.

R. Larry Brown, Asst. U.S. Atty., Wm. H. Brown, Jr., Sr. Asst. Rep. Labor Counsel, Memphis, Tenn., for defendant.

AMENDED AND NEW FINDINGS AND CONCLUSIONS

AND ORDER ON MOTIONS FOR NEW TRIAL

McRAE, Chief Judge.

This was a "mixed" case, i.e., on the one hand seeking reversal of a decision previously issued by the Merit Systems Protection Board (MSPB) approving plaintiff's termination as a postal employee and on the other hand alleging that plaintiff was a victim of handicap discrimination. Following the filing of a Motion for Summary Judgment by the defendant, the Court issued an Order on July 19, 1985, indicating that : (1) jurisdiction was proper in this case under 5 U.S.C. § 7703(b)(2), 29 U.S.C. § 794a and 42 U.S.C. § 2000e-16(c); (2) that portion of the case seeking reversal of the MSPB decision should be decided based on the Court's review of the administrative record; and (3) sufficient questions of fact existed on the handicap discrimination issue to require a trial de novo of the same.

Following the submission of the briefs by the parties and review of the administrative record, the Court issued an Order on November 5, 1985, affirming the decision of the MSPB.

Thereafter, the handicap discrimination issue was tried non-jury before the Court. On March 10, 1986, after plaintiff had rested his case, counsel for the defendant moved that the Court dismiss the case under Rule 41(b), FRCP, on the ground that under the facts proven by plaintiff, and under established legal precedent, he had not shown that he was entitled to relief. Following oral argument by both counsel, the Court indicated that it was of the opinion that the motion was well taken. As required by Rule 52(a), FRCP, the Court then proceeded to make oral findings of fact and conclusions of law. A written Order was signed by the Court on March 10, 1986, granting defendant's Motion to Dismiss. Thereafter a judgment was signed by the Court on March 18, 1986, and entered on the docket on March 19, 1986, affirming the decision of the Merit Systems Protection Board and dismissing plaintiff's complaint with respect to the issue of handicap discrimination.

Plaintiff has now filed a Motion for a New Trial or to Alter or Amend Judgment (Motion for New Trial). Rule 59, FRCP, provides that in a motion for new trial in a non-jury case, the Court may amend findings of fact and conclusions of law or make new findings and conclusions and direct the entry of a new judgment. This Court hereby amends it findings and makes new ones primarily for clarification of its ruling on the Rule 41(b) motion in favor of the defendant.

LEGAL ARGUMENT

Plaintiff's counsel raises a number of issues in his instant Motion for a New Trial. His memorandum in support of such motion is replete with misguided argument, conjecture and, in some instances, outright misrepresentation of the facts and law in this matter.

Plaintiff entered into this trial alleging three theories of recovery, i.e., (1) that the attendance control program under which he was terminated had a disparate impact on handicapped employees; (2) that he was the subject of disparate application of the attendance control program; and (3) that the Postal Service failed to accommodate his handicap.

Disparate Impact

Plaintiff called two postal officials (Tommie Nix and Robert Gibson) as witnesses and elicited testimony from them which established that the attendance control policy in effect at the Bulk Mail Center was enacted to deal with the problem of unscheduled absenteeism. A review of the attendance control policy itself, introduced into evidence by plaintiff as Exhibit 33, substantiates their testimony in this regard. Under the program, employees who experienced three unscheduled absences (referred to as frequencies) within a 90-day period were subject to discipline for the same. Initially, the employee was given an oral warning. However, if his attendance did not improve in subsequent quarters, he was subject to discipline of a progressively more serious nature, up to and including discharge if the problem was not ultimately solved. Robert Gibson testified that the program was applied the same to all employees, whether handicapped or not.

In a handicap case, in order to make out a prima facie case of disparate impact, plaintiff would have to show that the attendance control program, although facially neutral, "... disparately disadvantages the protected group of which he is a member and that he is qualified for the position under all but the challenged criteria." Prewitt v. USPS, 662 F.2d 292, 306 (5th Cir.1981). See also, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

Plaintiff offered no evidence whatsoever to show that the program had a disparate impact on handicapped employees. In fact, he offered no evidence to show how it affected any other employee period.

Disparate Treatment

Plaintiff also alleged that he was subjected to disparate treatment in connection with his termination. That is, he asserted that he was treated differently from other employees in connection with the way in which the attendance control program was administered. It is unclear whether plaintiff attributes any specific motive to the postal officials in question for allegedly according him such differential treatment. However, it is clear that in a handicap discrimination case, to make out a case of disparate treatment, plaintiff must show that he was treated differently from others because of his handicap. See Prewitt v. USPS, supra, 662 F.2d at 305, n. 19.

Plaintiff made no showing that: (1) the attendance control program was applied differently to him than to other employees; or (2) that the manner in which the policy was applied to him had anything to do with his physical or mental condition. The only testimony elicited by plaintiff about the manner in which the program was applied came from postal official Robert Gibson who testified that it was applied the same to all employees.

In this regard, plaintiff through his counsel, attempts to argue that all of his absences were not unscheduled and thus he should not have been disciplined for the same. However, at the beginning of the trial when plaintiff introduced Exhibits 1 through 20 (which are the leave slips and doctors' excuses covering the absences detailed in Notice of Proposed Removal) the parties specifically stipulated on the record that 11 of these absences were in fact unscheduled. Thus, plaintiff cannot now be heard to assert the contrary.

Plaintiff also argues that leave should have been approved in certain instances to cover his absences and that if such leave had been granted he could not have properly been subject to discipline under the attendance control policy. What plaintiff's counsel continues to fail to recognize is that if an absence was unscheduled, the employee was subject to discipline for the same, whether or not he subsequently was granted leave to cover the absence. The approval of leave would merely mean that the employee could be paid for the absence (if he had a leave balance on which to draw), not that the absence would not be counted as a frequency under the attendance control program. Contrary to plaintiff's assertions, nothing in either postal or applicable federal regulations prohibits the Postal Service from disciplining an employee for unscheduled absenteeism.

The only regulation that contains any prohibition against the discipline of an employee who is absent because he is receiving treatment for a service connected disability is Executive Order 5396. That Order provides that leave will be granted to employees who must receive treatment for a service connected disability and that the same will not be used against the employee. However, it specifically provides that in order to avail oneself of that protection, the employee must give advance notice of the fact that he will be absent so that arrangements can be made for carrying on the work during his absence. Plaintiff knew what his obligations were in this regard. In fact, he had been specifically advised of the same by the Merit Systems Protection Board in the decision which it rendered with respect to plaintiff's first discharge from the Postal Service. Had he followed these guidelines, it is obvious that he would not have been disciplined under the attendance control program since the program only applied to unscheduled absences.

There was an absolute lack of proof to show that plaintiff was treated differently from any other employee under the attendance control program. Thus, he clearly failed to make out a showing of disparate treatment based on his handicap.

Reasonable Accommodation

A review of the complaint and the pretrial order in this judicial action appears to reflect that the alleged handicap for which plaintiff sought accommodation was his service connected mental condition. However, at trial he decided that his diabetes also caused him problems which required accommodation. Pla...