01a55375
12-28-2005
Daniel T. Barker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel T. Barker v. United States Postal Service
01A55375
December 28, 2005
.
Daniel T. Barker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55375
Agency No.4A-117-0074-98
DECISION
Complainant appeals to the Commission from the agency's June 29, 2005
decision finding no discrimination. Complainant alleged that he was
subject to discrimination on the bases of disability and retaliation when:
In the fall of 1997, (a) complainant's requests for sick and annual
leave were denied; (b) complainant's doctor's orders were disregarded;
(c) complainant was threatened with removal from the Postal Service;
and (d) management refused to discuss complainant's Fitness for Duty
evaluation with complainant;
On February 19, 1998, complainant received a letter from the Manager,
Human Resources, denying complainant the right to appeal his 1997 merit
evaluation;
On March 2, 1998, complainant was informed that complainant's position
as Postmaster in Bohemia, New York, had been posted as vacant; and
The agency Medical Officer failed to render a suitability determination
in regard to complainant's March 3, 1998 Fitness for Duty Examination.
Although complainant initially requested a hearing, he withdrew
his request. We find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. At the outset, we note
that complainant explicitly states on appeal that he is not seeking a
reasonable accommodation.
The record shows that the Department of Labor informed complainant that
his request for compensation benefits was denied and he could return to
duty. Complainant subsequently requested sick leave rather than return
to duty. The agency refused on the grounds that complainant failed
to show he was unable to return to duty. Complainant then requested
annual leave in lieu of sick leave. The agency again refused on the
grounds that complainant failed to show he was unable to return to duty.
The agency relied on findings by the Department of Labor rather than
statements by complainant's physician. There is no indication that the
agency's decision to deny complainant's leave requests and rely on the
Department of Labor's findings was motivated by discrimination (claims
1(a) and 1(b)). The agency denies threatening complainant with removal,
but admits advising complainant that he would be subject to being placed
on Absence Without Leave if he did not return to duty. We find that
complainant failed to show discrimination by any alleged agency action in
claim 1(c). Furthermore, there is no indication that the agency refused
to discuss complainant's fitness for duty examination with him or that he
was harmed by any alleged refusal to discuss the examination (claim 1(d)).
Regarding claim (2), the agency asserts that complainant was not denied
a right of appeal of his 1997 merit evaluation. The agency asserts,
and the record indicates, that the Manager, Human Resources explained
the agency's position in the 1997 merit evaluation (i.e., the rating
was based on complainant's non-attendance) rather than deny a right to
appeal the evaluation. Complainant has not shown that this argument by
the agency is a pretext for discrimination.
Regarding claim (3), the agency asserts that it posted the position
because, except for one brief interval, complainant had been absent
from his work station for almost two years. The agency also notes that
the request to post complainant's position as vacant was made with
the understanding that complainant would be reinstated to a similar
position if he ever returned to duty. The Commission finds that this
is a legitimate, non-discriminatory reason for posting complainant's
position. Complainant has not shown that this reason is a pretext for
discrimination.
Regarding claim (4), the record indicates that the agency's Medical
Officer and a Medical Examiner no longer work for the agency and there
are no records pertaining to complainant's claim. Complainant failed
to show that he was actually denied a suitability determination or
that such a denial rendered him aggrieved. Furthermore, complainant
failed to show that the Medical Officer or Medical Examiner was aware
of complainant's prior protected activity. Although complainant stated
that the Manager, Post Office Operations was ultimately responsible for
not making sure that complainant was given a suitability determination,
the Manager, Post Office Operations stated that he had no involvement
in the suitability determination. Complainant has not sufficiently
rebutted the Manager, Post Office Operations statement or shown, by a
preponderance of the evidence, that the alleged agency failure to provide
him with a suitability determination was motivated by discrimination
based on disability or in retaliation for prior protected activity.
The Commission finds that complainant failed to show that the agency's
reasons are pretext for discrimination. Furthermore, complainant failed
to show, by a preponderance of the evidence, that he was discriminated
against on the bases of disability or retaliation. The agency's decision
finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
December 28, 2005
__________________
Date