01A24111
11-24-2003
Steven M. Schwartz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Steven M. Schwartz v. United States Postal Service
01A24111
November 24, 2003
.
Steven M. Schwartz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A24111
Agency Nos. 4-H-330-1493-96, 4-H-330-1520-96, 1-H-333-0005-97
Hearing Nos. 150-A0-8073X, 150-A0-8297X, 150-A0-8863X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against him on the
bases of race (Caucasian), sex (male), disability, and in reprisal for
prior EEO activity, 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. when:
(1) On March 21, 1996, complainant was bypassed for a bid position at
the agency's South Florida/Fort Lauderdale facility;
On April 5, 1996, complainant received a �rehabilitated job offer� in
Miami which required him to accept the offer within 15 days or have
his compensation discontinued; and,
On September 16, 1996, complainant was forced to train at the Miami
Processing and Distribution Center for the Flat Sorter Machine Operator
position.
Complainant requested a hearing on his formal complaints. Prior to the
hearing, the AJ issued a Notice of Intent to Issue a Partial Summary
Judgment. The AJ advised the parties by Order dated November 27, 2001,
that a Partial Summary Judgment, finding that complainant was not an
�individual with a disability� under the Rehabilitation Act, would be
issued and incorporated into
the decision following the hearing. The AJ found complainant's alleged
impairments in the instant case to be the same as those analyzed
by the Commission in Schwartz v. United States Postal Service, EEOC
Request No. 05970788 (July 14, 2000), req. for reconsideration denied,
EEOC Request No. 05A20347 (October 8, 2002), in which the Commission
found that �complainant is not an �individual with a disability,'
qualified or otherwise, within the meaning of the Rehabilitation Act,
and therefore is not entitled to the Act's protection.� We concur with
the AJ's conclusion and find that the Administrative Judge's issuance of
a decision without a hearing with regard to that basis was appropriate.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003). A preponderance of the record evidence does not establish that
discrimination on the basis of disability occurred.
With regard to the remaining bases, and complainant's three claims
of discrimination and retaliation, after a review of the record in
its entirety, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final action because the Administrative
Judge's ultimate finding, that unlawful employment discrimination was
not proven by a preponderance of the evidence, is supported by the record.
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
November 24, 2003
__________________
Date