0520010129
01-15-2010
Richard D. Menken, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Richard D. Menken,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 0520100129
Appeal No. 0120082275
Hearing No. 410-2007-00090X
Agency No. 4H-300-0201-06
DENIAL
Complainant timely requested reconsideration of the decision in Richard
D. Menken v. U.S. Postal Service, EEOC Appeal No. 0120082275 (October
26, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On September 20, 2006, complainant filed a formal complaint alleging that
he was discriminated against on the basis of disability (back injury)
when:
1) the agency offered alternate employment to him during the period of
May through August of 2006, following his removal from his bid position
as a Letter Carrier; and
2) the agency's failure to accommodate him led to his constructive
discharge.
At the conclusion of the investigation, complainant requested a hearing.
Subsequently, an EEOC Administrative Judge (AJ) granted the agency's
motion for a decision without a hearing regarding claim#2. After holding
a hearing only on claim#1, the AJ issued a decision finding that
complainant failed to establish that he was discriminated against.
With respect to claim#2, the AJ found, among other things, that
complainant failed to show that the conditions of his work assignment
were such that he was forced to retire. Regarding claim#1, the AJ found
that complainant failed to show that he should have maintained his Letter
Carrier position and seniority rights even though he was unable to perform
the work of the Letter Carrier.1 The AJ also found that complainant was
not a qualified individual with a disability because he failed to show
that there was another vacant, funded position that he could perform.
Accordingly, the AJ found that complainant failed to establish that the
agency failed to provide him a reasonable accommodation.
The agency issued a final order adopting the AJ's decision. Complainant
filed an appeal with the Commission on April 21, 2008. The previous
decision found that, with respect to claim#2, there was no indication
in the record that complainant was subjected to intolerable working
conditions which arose out of conduct which constituted prohibited
discrimination on the basis of disability. Regarding claim#1, the
previous decision found that there was substantial evidence in the record
to support the AJ's determination that complainant was not a qualified
individual with a disability. Specifically, the previous decision noted
the determination that complainant could not perform the duties of his
Letter Carrier position with or without an accommodation.
In his reconsideration request, complainant, through his attorney,
argued that the previous decision erred in finding that: (1) he failed
to show that there were no vacant funded positions that he could perform;
(2) he failed to prove that he was medically prohibited from performing
the duties of the offered position on Tour III; (3) he failed to show
the conditions of his work assignment were such that he was forced to
retire; (4) he failed to show that he was a qualified individual with a
disability since he could not perform the Letter Carrier position with or
without reasonable accommodation; and (5) he failed to show the physical
demands of the Clerk position on Tour III exceeded his physical capacity.
Complainant's attorney indicated that there was a brief in support of
complainant's positions already in the ROI and that he would rely on
the arguments and exhibits contained therein to support the request
for reconsideration.
We remind complainant that a "request for reconsideration is not a second
appeal to the Commission." Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999), at 9-17. This
Commission carefully considered all of the record evidence at the time it
rendered the initial decision, and complainant has offered no persuasive
reason why this decision should be reconsidered now. Therefore,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120082275 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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
____01/15/10______________
Date
1 The record indicates that complainant was provided an offer to work as
a Clerk on Tour III. According to complainant, he accepted the position
under duress, but was subsequently forced to retire. The AJ found that
complainant failed to show that the physical demands of the position on
Tour III exceeded his restrictions. The AJ also found that management
testified credibly that complainant was assigned to Tour III because that
was where most of the work was, and that it was where she had the greatest
amount of sedentary work that fell within complainant's restrictions.
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0520100129
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100129