01a45296
08-04-2005
Lonnie Maxie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lonnie Maxie v. United States Postal Service
01A45296
August 4, 2005
.
Lonnie Maxie,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45296
Agency No. 1G-756-0059-02
Hearing No. 310-2003-05109X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a Mailhandler, PS-4, at the
agency's Dallas Bulk Mail Center facility, filed a formal EEO complaint
alleging that the agency discriminated against him on the bases of race
(African-American), sex (male), and disability (arthritis) when it
failed to provide him with reasonable accommodation and when he was
removed from employment in 2001.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ's findings of fact were as follows: In March 2000, complainant
began experiencing foot pain. He also began to report for work late
and accrue unauthorized absences. In the ensuing months, complainant
received both a letter of warning and a seven-day suspension related to
his attendance.
In August 2000, complainant was diagnosed with arthritis. In September
2000, he requested a schedule change in the form of one hour of leeway
in his arrival time, for �personal reasons.�<2> Complainant thereafter
was suspended again on account of his attendance.
On October 15, 2001, complainant and his first-level supervisor had a
pre-disciplinary meeting. The supervisor states that during that meeting,
complainant stated that the reason he was late was because he had to
take his wife to work. Complainant stated that he had offered that
explanation on a prior occasion, but not at the pre-disciplinary meeting.
Complainant testified that the agency approved leave for him, but
subsequently cited his leave usage as the basis for his removal.
Complainant stated that he had requested being able to arrive late on
an as needed basis because he was subject to flare-ups of his arthritis,
which was more of a problem when he awoke.
The AJ assumed for the sake of argument that complainant had established
that he was covered under the Rehabilitation Act. He first found that
complainant had not established disparate treatment discrimination,
in that he had not shown that he was treated less favorably than
employees outside of his protected groups. The AJ noted in particular
that complainant had requested at-will unscheduled leave, while the
employees to whom he compared himself had requested scheduled leave.
The AJ next found that complainant had not, in fact, requested reasonable
accommodation, and that the request he asserted at the time of the
hearing was not reasonable. The AJ noted that there was no evidence of
a written request, nor evidence that complainant specifically requested
to be allowed to come in at whatever time his condition permitted.
The AJ further cited evidence that complainant would come in anywhere
from two to four hours late without calling in and without reporting to a
supervisor when he finally arrived. The AJ also noted that at one point,
the agency offered complainant a change in tour so that he would not
have to report to work soon after waking, but that complainant declined.
The AJ concluded that the agency had not failed to reasonably accommodate
complainant, and that it had a legitimate basis for his removal.<3>
The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record,<4> the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. The Commission
discerns no basis to disturb the AJ's decision. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, the agency's final order 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
August 4, 2005
__________________
Date
1The record reflects that complainant subsequently was reinstated
and removed again. Only the first instance of removal is before the
Commission in this appeal.
2It does not appear the request was honored at that time.
3The notice of removal issued to complainant cites 20 instances of
unscheduled leave over a 90-day period.
4For purposes of its review, the Commission assumes, without deciding,
that complainant is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).