01A13811
10-18-2002
Warren A. Taylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Warren A. Taylor v. United States Postal Service
01A13811
October 18, 2002
.
Warren A. Taylor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A13811
Agency No. 1H-3110001-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Part-Time Flexible Distribution Clerk at the agency's
Augusta Processing and Distribution facility in Augusta, Georgia.
Complainant sought EEO counseling and subsequently filed a formal
complaint on October 12, 1999, alleging that he was discriminated against
on the basis of disability (knee) when on September 17, 1999, he was
not paid for working the Labor Day Holiday due to a Rehabilitation Job
Assignment which resulted from his becoming a Part-Time Flexible employee.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
The record reveals that complainant entered on duty with the agency on
November 18, 1989, as a Mail Handler. On February 27, 1995, complainant
suffered an on-the-job injury, for which he claimed workers' compensation
benefits. On October 7, 1996, the agency offered complainant a limited
duty assignment in the position of Modified Distribution Clerk based on
complainant's work restrictions, pending his recovery for regular duty.
However, in 1998, complainant reached maximum medical improvement which
kept him on medical restrictions permanently. When it was apparent to
the agency that complainant's medical limitations were permanent, it
offered complainant a permanent rehabilitation assignment in writing,
which complainant accepted on February 27, 1998. This position
(Modified Distribution Clerk, Part-Time Flexible) was a permanent
position that encompassed those duties that complainant had previously
been performing in the limited duty assignment which were within his
medical restrictions declared by complainant's attending physician.
In the written rehabilitation offer that was accepted by complainant,
the agency expressly advised complainant that his seniority in the new
craft was one day junior to the junior part-time flexible employee.
Since complainant's new rehabilitation job changed his status from
Full-Time Regular to Part-Time Flexible, he was no longer eligible to
receive holiday pay when working holidays.<1>
In its FAD, the agency concluded that complainant had established
a prima facie case of reprisal by virtue of the fact that he had
engaged in prior EEO activity on numerous occasions and the responsible
management officials were aware of complainant's prior EEO activity.
In addition, the agency found complainant to be a qualified individual
with a disability pursuant to the Rehabilitation Act.
However, the agency concluded that complainant failed to present any
evidence that the agency's legitimate, non-discriminatory reasons for
its employment action were pretextual or based on discriminatory or
retaliatory motives. Specifically, the record shows that in accordance
with the Collective Bargaining Agreement, as a Part-Time Flexible
employee, complainant has no seniority rights and is not entitled to
additional holiday pay. The record shows that complainant is instead
paid for hours he worked in accordance with the Collective Bargaining
Agreement. There is no indication from the record that the responsible
management officials failed to follow the agency's policy which is
applied to all individuals equally.
On appeal, complainant raises arguments and issues not relevant to the
allegation herein.
Assuming, without deciding, that complainant is a qualified individual
with a disability, the Commission concurs with the agency's determination
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that complainant's
acceptance of the permanent rehabilitation job offer in 1998 is not
at issue herein and the record is devoid of any evidence in support of
pretext or discriminatory animus.
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, we affirm the FAD.
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
October 18, 2002
__________________
Date
1 While complainant lost seniority benefits as a result of his change
in status, complainant retained his full-time pay.