0120050752
02-16-2007
Edward L. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Edward L. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01200507521
Agency No. 4F-852-0028-03
Hearing No. 350-2003-08128X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 17, 2004 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.
Complainant, formerly a City Carrier at the Sierra Vista Station in
Arizona, alleged that the agency discriminated against him on the basis
of disability (Osteoarthritis)2 when he was denied light duty on September
11, 2002 and September 26, 2002.
At the completion of the investigation, complainant timely requested a
hearing before an Administrative Judge (AJ). The AJ held a hearing and
found no discrimination. Specifically, the AJ found that complainant
established a prima facie case of discrimination, and that the agency
articulated legitimate, nondiscriminatory reasons for denying the
light duty request; namely, complainant's request was vague. The AJ
found that the medical certificate recommends clerical duties only,
while the CA-17 indicates specific restrictions. The AJ noted that
the agency officials testified that they felt such documents conflicted
because the CA-17 indicated that complainant could perform his carrier
duties with assistance, while the certificate restricted complainant
to clerical duties only. The AJ further found that management stated
they requested additional medical documentation to support the light duty
request, but complainant never provided such documentation. In addition,
the AJ found that the agency explained that the request was also denied
for budgetary reasons; namely, carriers were allotted to work a certain
number of hours in the budget, and placing an individual on light duty
contributed to the agency running over budget. The AJ found that the
agency noted that unlike with limited duty, light duty is discretionary
because individuals requiring it have not been injured on the job. The AJ
found no evidence of discriminatory animus. The agency subsequently
issued a final order implementing the AJ's decision.
Complainant has raised no new arguments on appeal. Initially, we note
that it was proper for the AJ to analyze the issue at hand only within a
disparate treatment framework because at the beginning of the hearing, the
AJ noted that the parties stipulated to the fact that when the Postmaster
submitted complainant's name to the Reasonable Accommodation Committee,
complainant indicated that he did not want his request for light duty
to be reviewed by the Committee. Accordingly, we find that complainant
was not seeking a reasonable accommodation within the meaning of the
Rehabilitation Act.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to affirm the final agency
order 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
February 16, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 Complainant initially alleged race and age discrimination as well.
However, he did not object at the hearing to the framing of the issue as
comprising only the basis of disability. Accordingly, we will assume
that disability is the only alleged basis of discrimination. We also
assume arguendo that complainant is an individual with a disability
pursuant to the Rehabilitation Act.
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0120050752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036