0120063356
09-26-2007
Eric J. Gregory, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Eric J. Gregory,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 0120063356
Agency No. 1K-211-0065-05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 17, 2006 final decision 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 alleged that the agency discriminated against him on the
basis of disability (depression, bi-polar disorder and emotional response
disorder) when on July 23, 2005, his assigned duty hours of 7:00 a.m. to
3:30 p.m. were changed to assigned duty hours of 11:00 p.m. to 7:30 a.m.
The record indicates that complainant was employed as a full-time Mail
Processing Clerk at the agency's Baltimore, Maryland Processing and
Distribution Center ("facility"). The record indicates that on June
22, 2005, the facility's Manager, Baltimore Air Mail Center informed
complainant that due to operational changes he had become excess to
the needs of his section pursuant to the agency's Collective Bargaining
Agreement (CBA), effective July 23, 2005. Complainant was notified that
as an unassigned regular full-time employee, he would be assigned to the
Automation Section at the facility with a reporting time of 11:00 p.m. and
Thursday/Fridays off. On June 24, 2005, a physician wrote a letter at
complainant's request stating that complainant needed to be assigned to a
daylight rotation in a position similar to the one he presently occupied,
due to an emotional disorder. Complainant also drafted a letter to
the agency's Injury Compensation office, requesting an assignment to
the daylight shift. The Injury Compensation office responded that
complainant did not have an accepted claim for stress. Subsequently,
complainant was informed that he could submit a request to the agency's
District Reasonable Accommodation Committee (DRAC) or request a change
of schedule through the grievance process1.
The record further indicates that on October 18, 2005, complainant
submitted a PS Form 3189, requesting a temporary schedule change for the
period of October 22, 2005 through November 18, 2005, which was approved.
Complainant stated that his impairments did not affect the performance
of his position, but working nights disrupted his sleep cycles and sent
him into depression where he was unable to leave his home. Complainant
stated that management was aware of his illness for an extended period.
He further stated that he sought to be kept off the night shift as a
reasonable accommodation, but management ignored his request.
The agency's final decision (FAD) found that assuming complainant
was covered by the Rehabilitation Act and established a prima facie
case of disability discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions. In so finding, the FAD noted
that facility management stated that complainant was reassigned due to
the increase of priority mail. The facility's Manager, Distribution
Operations (MDO) stated that she became aware of complainant's medical
condition when he sent her a letter in July of 2005 requesting a
change to the daylight schedule; the Senior Plant Manager approved a
temporary change. The MDO then stated that the DRAC met in November
of 2005 and decided to grant complainant an additional temporary
change of schedule, even if it meant his changing crafts. FAD at 5.
The facility's Senior Plant Manager stated that when complainant was
reassigned, due to problems with other daytime (Tour 1) employees,
complainant was temporarily assigned to a nighttime shift. However,
the Senior Plant Manager stated that complainant was reassigned to a
new position with new hours pursuant to the CBA's provisions regarding
downsizing of a given operation. He stated that complainant was moved
to a night time schedule due to his seniority, craft and section, with
illness having no bearing on the reassignment. However, the FAD found
that the agency accommodated complainant by providing him with a temporary
change of schedule to day hours, with a permanent change in schedule
being under review at the time complainant filed his formal complaint.
Assuming, arguendo, that complainant is an individual with a disability,2
we find that the agency did not discriminate against him by failing
to provide him with an accommoation. The record indicates that
after complainant was informed that he was being reassigned to the
Automation Section at the facility with nighttime hours, he informed
agency management that he sought to remain working on Tour II during
daytime hours. Complainant then submitted a PS Form 3189, and was
granted a temporary change to daylight hours (7:00 a.m. to 3:00 p.m.) by
the Senior Plant Manager. Investigative Report (IR), at Affidavit B.
Further, the record indicates that the agency's procedure to request a
permanent reasonable accommodation was to petition the agency's DRAC and
complainant was informed of this procedure by the agency's Workplace
Improvement Specialist in September of 2005. Complainant submitted
medical documentation to the DRAC in October of 2005. The DRAC met in
November of 2005 and granted complainant an additional temporary change
of schedule which also allowed him to bid on daylight jobs, even if a
change in crafts was required. The Chair of the DRAC stated that she
received a letter from complainant's physician on October 5, 2005 and
decided to temporarily extend complainant's schedule to daylight hours
until the DRAC finished reviewing his case. IR at Affidavit C.
The record indicates that complainant was scheduled to be reassigned to
Tour I (nighttime hours) in July of 2005 as he was found to be excess to
the needs of his section based on seniority. Pursuant to the provisions
of the agency's CBA for unassigned employees, complainant was scheduled
to be temporarily reassigned to Tour I from 11:00 p.m. to 7:00 a.m.
There is no indication in the record that the Manager of the Baltimore
Air Center, who informed complainant of his reassignment, was aware
of complainant's emotional disorder or his desire to remain working
a daytime shift.3 Following complainant's request for a reassignment
back to Tour II, he initially submitted letters from himself and his
physician to the agency's Injury Compensation office recommending that
he remain on a daytime work assignment.4 The record indicates that
complainant's reassignment requests were ultimately forwarded to the
agency's Workplace Improvement Specialist, who advised him as to his
options regarding reassignment to Tour II. The Commission notes that
there was a time period during which complainant was required to work
on Tour II despite his emotional disorder. However, the record reflects
that complainant initially did not submit his accommodation requests to
the agency's Workplace Improvement Analyst, and then took nearly one
(1) month to submit the required PS Form 3189 for a schedule change
to facility management. Further, we find there is no indication in
the record which indicates that complainant was required to work a
nighttime assignment on Tour I after he: (1) properly contacted the
agency's Workplace Improvement Analyst; (2) requested the accommodation
of working during daylight hours by submitting the required PS Form 3189
to management for a schedule change; and (3) contacted the DRAC for a
permanent reassignment back to Tour II. IR at Affidavits A and B.
As such, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
____9/26/07______________
Date
1 The Commission notes that there is no evidence in the record which
indicates whether complainant filed a grievance with the agency concerning
his reassignment.
2 For purposes of analysis, and without so finding, we will assume that
complainant is covered by the provisions of the Rehabilitation Act.
3 The record indicates that the MDO stated she played no role in
complainant's duty hours being changed.
4 The record reflects that the agency's Injury Compensation Specialists
dealt only with claims filed under the Federal Employees Compensation Act
(FECA) for job-related injuries, and complainant did not have an accepted
FECA claim for stress.
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0120063356
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063356