01a40907
04-08-2005
Brian T. Kirchner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brian T. Kirchner v. United States Postal Service
01A40907
April 8, 2005
.
Brian T. Kirchner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40907
Agency No. 1J-482-0028-99
Hearing No. 230-A1-4049X
DECISION
Complainant appeals to the Commission from the agency's October 17, 2003
decision finding no discrimination. Complainant alleges discrimination:
(1) on the basis of disability when on January 18, 1999, and continuing to
the present, the agency refused to reasonably accommodate him by allowing
him to monitor his diabetes outside of his regularly scheduled breaks
and required him to clock-out while doing the monitoring; (2) on the
basis of reprisal when: (a) in February 2002, he was required to take a
fitness for duty examination and then was not allowed to return to work;
(b) he was terminated from the position of Aviation Security designee;
(c) he was terminated from his practice of working �off days� from
6:00 p.m. to 11:00 p.m.; and (d) he was not allowed to work between
September 30, 2002 and October 4, 2002; and (3) the agency improperly
denied official time to see his union representative concerning the case.
After an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). Before the hearing, complainant withdrew
his request for a hearing. Thus, on May 29, 2003, the AJ issued an
Order dismissing the matter and remanding the matter to the agency for
a decision. On October 17, 2003, the agency issued a decision finding
no discrimination. Specifically, the agency found that complainant was
not an individual with a disability. The agency found that assuming
complainant was an individual with a disability, the agency provided
complainant with a reasonable accommodation. With regard to claim 2,
the agency found that complainant failed to establish a prima facie case
of reprisal. The agency found that assuming complainant presented a prima
facie case of reprisal, the agency presented legitimate non-discriminatory
reasons for its actions which complainant failed to adequately rebut.
With regard to claim 3, the agency dismissed the claim for raising the
same claim that has been decided by the agency or Commission pursuant
to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency found that the
instant claim is the same as the claim raised in EEOC Appeal No. 01A02349.
Claim 1
Complainant alleges that he was refused a reasonable accommodation by the
agency when he was required to clock out while monitoring his diabetes.
Assuming that complainant is an individual with a disability, we find that
complainant has not shown that he was denied a reasonable accommodation.
The record indicates that complaint was allowed to monitor his diabetes
on the clock for some time. However, a co-worker complained that the
routine was unpleasant to watch. Thus, complainant was told to monitor
his diabetes in his supervisor's office. Complainant's routine expanded
from 5 minutes to 15 minutes. The agency argues that complainant then
took a break after monitoring his insulin. Thus, complainant was away
from his station for about 30 minutes. The agency argues that is was
too long to stay away from the station. Thus, the agency offered to
change complainant's break time to when he needed to monitor his insulin.
The regulations require the agency to provide an effective accommodation,
not an accommodation of complainant's choice. There is no medical
documentation to indicate that this is not a reasonable accommodation.
See Turner v. Department of Defense, EEOC Appeal No. 01A21018 (May
29, 2003). Thus, we find that complainant has failed to show, by a
preponderance of the evidence that he was not provided with a reasonable
accommodation. We make this decision without making a determination
as to whether complainant is an individual with a disability under the
Rehabilitation Act.
Claim 2
With regard to claim 2, complainant alleges discrimination on the
basis of reprisal when: (a) in February 2002, he was required to take a
fitness for duty examination and then was not allowed to return to work;
(b) he was terminated from the position of Aviation Security designee;
(c) he was terminated from this practice of working �off days� from 6:00
p.m. to 11:00 p.m.; and (d) he was not allowed to work between September
30, 2002 and October 2, 2002.
The agency argues that complainant was sent for a fitness for duty after
several incidents of becoming disoriented at work and after reporting
to work late. Complainant has not shown a nexus between prior protected
activity and being sent for a fitness for duty. Even assuming complainant
presented a prima facie case of reprisal, complainant has not shown,
by a preponderance of the evidence, that the reason given by the agency
was pretext for discrimination.
The agency argues that the position of Aviation Security Designee is
a self imposed title. It consists of a group of volunteers that help
with self-audits. The position does not change the employees' pay,
benefits, or title. The agency argues that more volunteers were trained
to volunteer to conduct self audits to have more flexibility so employees
could actually perform primary duties. The agency argues that complainant
needed to be spending more time performing his primary duties.
Complainant has not shown a nexus between prior protected activity
and being terminated from the position of Aviation Security designee.
Even assuming complainant presented a prima facie case of reprisal,
complainant has not shown, by a preponderance of the evidence, that the
reasons given by the agency were pretext for discrimination.
The agency argues that complainant was not working off days because of a
provision of the collective bargaining agreement which guarantees 8 hours
of pay when working off days regardless of the hours worked. The agency
argues that it is not in the best interest of the agency to pay anyone,
including complainant, for 8 hours when the employee only worked 5 hours.
Complainant has not shown a nexus between prior protected activity
and not being able to work on his off days. Even assuming complainant
presented a prima facie case of reprisal, complainant has not shown,
by a preponderance of the evidence, that the reasons given by the agency
were pretext for discrimination.
The agency argues that complainant was not allowed to return to work
between September 30, 2002 and October 4, 2002 because he needed to be
cleared by the medical unit. The record indicates that complainant
was absent and brought in a note from the doctor indicating that he
could return to work. The agency argues that he needed to be cleared
by the medical unit first, which did not occur until October 4, 2002.
Complainant has not shown a nexus between prior protected activity and
not being allowed to work between September 30, 2002 and October 4, 2002.
Even assuming complainant presented a prima facie case of reprisal,
complainant has not shown, by a preponderance of the evidence, that the
reasons given by the agency were pretext for discrimination.
Claim 3
The agency argues that claim 3 should be dismissed for raising the same
claim pending before or decided by the Commission or agency. The agency
argues that the issue of official time was decided by the Commission
in EEOC Appeal No. 01A02349. The Commission's decision in Appeal
No. 01A02349 indicates that complainant, on appeal, contended that he
was repeatedly denied official time to respond to the agency's requests.
Kirchner v. United States Postal Service, EEOC Appeal No. 01A02349
(May 16, 2000). However, the Commission found that the record did not
indicate whether the agency required complainant to request official
time from his supervisor or the EEO office. Id. Thus, the Commission
found that, without such evidence, the Commission cannot conclude that
complainant failed to request official time to respond to the agency's
request for a detailed affidavit. Id. The Commission concluded by
finding that complainant may challenge any denials of official time
when he requests a hearing before an Administrative Judge and in an
appeal of decision by the agency on the existing complaint. Id. Thus,
we find that the matter was not previously adjudicated by the agency or
Commission, and that the issue is still ripe for review. Thus, we find
that the agency improperly addressed the claim by dismissing it as the
same claim pending pursuant to 29 C.F.R. � 1614.107(a)(1). Therefore,
we will address complainant's claim of denial of official time.
With regard to this claim we find that complainant has failed to present
sufficient evidence that he was denied official time. The agency
argues, on appeal, that complainant's representative telephoned the
agency's representative and advised the agency that between May 16,
2003 to May 22, 2003, complainant was denied 45 hours of official time.
There is no evidence in the record to indicate that the requests were in
writing and in fact denied. Thus, we find that complainant has not shown,
by a preponderance of the evidence, that he was denied official time.
The agency's decision finding no discrimination 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
April 8, 2005
__________________
Date