0120080557
01-27-2011
Robert P. Sweeney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Robert P. Sweeney,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120080557
Hearing No. 530-2006-00095X
Agency No. 4A-070-0208-05
DECISION
On November 14, 2007, Complainant timely filed an appeal from the Agency's
October 11, 2007, final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether Complainant's instant complaint should
be dismissed for stating the same claim that is pending before or has
been decided by the Agency or the Commission
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a level EAS-16 Postmaster at the Agency's Swan Lake, New York Post
Office. On January 14, 2004, Complainant requested reassignment to a
Postmaster position in Augusta, New Jersey as an accommodation for his
diabetes. The Augusta position was located closer to Complainant's home
in Milford, Pennsylvania, and would result in a shorter commute to work
for Complainant. Complainant stated that he sought this shorter commute
because he often felt tired due his diabetes while commuting by car from
his home to the Swan Lake, New York Post Office. Subsequently, however,
on May 6, 2004, the Agency denied Complainant's request. On May 26,
2004, Complainant provided medical documentation from his physician,
noting that he would benefit if he were transferred to a post office
closer to his home. On August 5, 2005, Complainant again requested the
reasonable accommodation that he be transferred to a vacant position
closer to his home, noting that he continues to become drowsy driving
to and from work due to his diabetic condition.
On November 10, 2005, Complainant filed this instant EEO complaint
alleging that the Agency discriminated against him on the bases of
disability and reprisal for prior protected EEO activity when on August
5, 2005, he was not transferred to a location closer to his home as a
reasonable accommodation for his diabetic condition.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over the Complainant's objections, the AJ
assigned to the case granted the Agency's July 26, 2006, motion for
a decision without a hearing and issued a decision without a hearing
on September 26, 2007. The Agency subsequently issued a final order
adopting the AJ's finding that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.
The AJ noted that the Agency failed to examine the question of whether
Complainant's regimen of monitoring or controlling his diabetes imposes
as a substantial limitation on his life activities. However, the AJ
noted that Complainant did not establish a nexus between his disabling
condition and the requested accommodation. In that respect, the AJ noted
that Complainant failed to show that his requested accommodation had any
relation to his condition. The AJ also found no evidence of reprisal,
noting that the Agency was not obligated to provide Complainant with
his requested accommodation.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his condition is severe enough to
qualify as a disability under the Rehabilitation Act. Complainant also
contends that since 2003, he has submitted sufficient documentation to
the Agency, showing the severity of his condition. Complainant further
contends that the Agency did not engage in the interactive process to
provide him with his requested accommodation.
ANALYSIS AND FINDINGS
Although the AJ addressed the merits of Complainant's complaint, we find
that this matter is more appropriately dismissed in accordance with
29 C.F.R. � 1614.107(a)(1) for stating the same claim that is pending
before or has been decided by the Agency or Commission. Here, the claim
raised in Complaint's prior complaint, which we addressed in Sweeny
v. U. S. Postal. Serv., EEOC Appeal No. 0120060418 (Sep. 17, 2007), and
the claim raised in this instant Complaint are identical.1 Specifically,
in Complainant's prior complaint and this instant complaint, Complainant
specifically requested, as a reasonable accommodation for his diabetes,
a transfer to a vacant position to shorten his driving commute. In the
record pertaining to both complaints, Complainant noted that he has
difficulty staying awake during his commute from his home in Milford,
Pennsylvania to his work location in Swan Lake, New York due to the
symptoms of his diabetes. Also, we note that on appeal, Complainant cited
to the record of his previous case and again disagreed with the Agency's
finding that his diabetic condition did not substantially limit him in
major life activities.
Further, we note that although Complainant did not raise reprisal as a
basis in his prior complaint, we find that the basis of reprisal must
be dismissed with respect to the instant complaint. It is well -settled
that a complaint which states the same facts as a previous complaint,
but alleges discrimination on additional bases, will be deemed identical
to the earlier complaint and dismissed. Robbins v. U.S. Postal Serv.,
EEOC Request No. 01830664 (Nov. 9, 1983). Based on these circumstances,
we find that the instant complaint contains the same claim (an ongoing
denial of a reasonable accommodation) as set forth in Complainant's
prior complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final order.
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
January 27, 2011
Date
1 In Sweeny, EEOC Appeal No. 0120060418, we addressed Complainant's prior
complaint wherein he alleged that he was subjected to discrimination on
the bases of sex (male), age, and disability when: (1) he was denied his
request for a non-competitive reassignment, as a reasonable accommodation,
to the Postmaster (PM) position in the Augusta, New Jersey Post Office
on or about June 30, 2004; and (2) he was not competitively selected
for the position of PM in the Augusta, New Jersey Post Office on or
about July 9, 2004. We determined that Complainant's complaint was most
properly viewed as a claim of denial of a reasonable accommodation for his
diabetic condition. We further vacated the Agency's final order, noting
that there was insufficient evidence to determine whether Complainant was
substantially limited in a major life activity due to his diabetes. We
also remanded the complaint back to the Agency to undertake and complete
a supplemental investigation. Among other things, the Commission ordered
the Agency, upon completion of the investigative report and receipt by
Complainant, to again provide Complainant the opportunity to request a
hearing before an AJ or the have the Agency issue a final decision.
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0120080557
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080557