01995488
03-23-2000
Edwin J. Seiffert, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.
Edwin J. Seiffert, Jr., )
Complainant, )
) Appeal No. 01995488
v. ) Agency No. 1C-451-0085-98
) Hearing No. 220-99-5003X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<2> Complainant alleges he was
discriminated against on the bases of physical disability (diabetes)
and in reprisal for prior protected activity when his request for leave
was disapproved on December 12, 1997. For the following reasons, the
Commission affirms the agency's final decision.
The record reveals that complainant, a Clerk at the agency's Processing
and Distribution Center in Cincinnati, Ohio, filed a formal complaint on
February 14, 1998, alleging that the agency had discriminated against
him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ found that complainant failed to establish a prima facie case
of retaliation because he failed to show that the named responsible
management official, his supervisor, was aware of complainant's prior
protected activity at the time he disapproved the leave request. The AJ
also found that although complainant established a prima facie case
of disability discrimination under a theory of disparate treatment,
the agency articulated a legitimate, nondiscriminatory reason for
disapproving the leave request, namely that complainant was needed to
work on the day in question.<3> Complainant's supervisor testified that
December 15, 1997 was the "busiest day of the year," and the facility's
"needs of service" precluded him from granting complainant the requested
leave.<4> Since complainant failed to refute his supervisor's explanation
or present any evidence tending to establish that the explanation was
a pretext for discrimination, the AJ concluded that complainant failed
to prove discrimination. The agency's final decision implemented the
AJ's decision. Neither party submitted a statement on appeal.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
We do not reach the issue of whether or not the AJ correctly held that
complainant is a "qualified individual with a disability" within the
meaning of the Rehabilitation Act. Based on our review of the record, we
find that even assuming arguendo complainant is a "qualified individual
with a disability," we discern no basis to disturb the AJ's ultimate
conclusion that complainant failed to establish that the disapproval of
his leave request was motivated by either discriminatory or retaliatory
animus. In reaching this conclusion, we note that complainant's
supervisor testified credibly to approving numerous leave slips for
complainant whenever the "needs of service" did not urgently require
complainant's attendance. Therefore, after a careful review of the
record, including arguments and evidence not specifically addressed in
this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
3/23/00
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 1 On November 9, 1999, revised regulations governing the
EEOC's federal sector complaint process went into effect. These
regulations apply to all federal sector EEO complaints pending at any
stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
3 The record does not support a finding that complainant's request for
leave was intended as a request for a reasonable accommodation of his
disability. Moreover, we note that complainant, who worked on Tour 1
(9:30 p.m. - 6:30 a.m.), did not present credible evidence as to why he
needed leave to attend a medical appointment which was scheduled during
the day or that the disapproval of his leave request in any way prevented
him from attending the appointment.
4 One employee was granted emergency leave during this time. Complainant
offered no evidence that he required the requested leave for an emergency
situation.