0120100815
05-03-2012
Glenn B. Miller, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Glenn B. Miller,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120100815
Agency No. 1E-554-0006-09
DECISION
Complainant appeals to the Commission from the Agency's final decision dated April 15, 2005, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In her complaint, Complainant alleged discrimination based on sex (male), age (over 40), and disability (herniated disc/tendonitis/sleep apnea) when: (1) on January 24, 2009, he was issued a Letter of Warning (LOW) based on failure to maintain a regular schedule; and (2) on February 6, 2009, he was issued a LOW based on unacceptable conduct/sleeping on the job. After completion of the investigation of the complaint, Complainant did not request a hearing. The Agency issued its final Agency decision dismissing the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Assuming the complaint stated a claim, the Agency also concluded that it nevertheless asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
Upon review, we find that the Agency improperly dismissed the complaint for failure to state a claim. The Agency stated that Complainant subsequently filed grievances concerning the alleged LOWs which were, as a result, expired via grievance settlement agreements. After a review of the record, since Complainant requested compensatory damages due to the alleged claims, we find that he was still aggrieved and the complaint stated a claim. 29 C.F.R. � 1614.107(a)(1).
Turning to the merits of the case, after a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. At the relevant time period at issue, Complainant was employed as a Mail Processing Clerk, PS-06, at the Minneapolis Processing and Distribution Center, Minneapolis, Minnesota. With regard to claim (1), Complainant's supervisor indicated that the alleged LOW was issued to Complainant because within a period of 27 days he used 6 days, i.e., 48.62 hours, of unscheduled leave. The supervisor also stated that Complainant took 32 hours of leave in conjunction with his scheduled days off. Complainant does not dispute the foregoing statements. With regard to claim (2), the supervisor indicated that the alleged LOW was issued to Complainant because he was given an official job discussion on December 20, 2008, about sleeping on the job and later on February 6, 2009, i.e., the alleged incident date, he was again observed sleeping for approximately 1 hour while on the clock. Complainant does not dispute this.
After a review of the record, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. In this decision, we do not address whether Complainant is a qualified individual with a disability. Furthermore, Complainant did not claim that he was denied a reasonable accommodation or he was required to perform his duties beyond his medical restrictions. Based on the foregoing, we find that Complainant has failed to show that the Agency's actions were motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
5/3/12
__________________
Date
2
0120100815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100815