05A30280
01-28-2003
Glenn J. Testa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Glenn J. Testa v. United States Postal Service
05A30280
January 28, 2003
.
Glenn J. Testa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Request No. 05A30280
Appeal No. 01A13517
Agency No. 4J-481-0118-97
Hearing No. 230-98-4070X
DENIAL OF REQUEST FOR RECONSIDERATION
Glenn J. Testa (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Glenn J. Testa v. United States Postal Service, EEOC
Appeal No. 01A13517 (October 30, 2002). EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
Complainant alleged discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., on the basis of disability (neck, back, ankle
and closed head injuries) when in March 1997 he was denied light duty,
and effective in May 1997 he was separated from the agency. Following a
hearing, an EEOC Administrative Judge (AJ) issued a decision finding no
discrimination. The agency's final order implemented the AJ's decision.
Complainant appealed the final order to the Commission. In its decision,
the Commission affirmed the AJ's finding that complainant was not
discriminated against as he could not perform the essential functions of
a City Carrier, with or without reasonable accommodation. In addition,
the Commission found that complainant did not prove by a preponderance
of the evidence that he was a qualified individual with a disability.
As such, we affirmed the agency's final order.
In his request for reconsideration, complainant contends that
the Commission's decision was based on several clearly erroneous
interpretations of material facts and laws. Complainant further contends
that he established that he was qualified individual with a disability
under the Rehabilitation Act and that the essential functions of the
City Carrier position should have been reallocated in his case.
As we stated in our initial decision, we find that in order to
provide complainant with the reasonable accommodation he requested,
the agency would have had to reallocate essential functions of his
City Carrier position, which the Rehabilitation Act does not require
the agency to do. See Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (revised October 17, 2002),
at page 6. As a result, the Commission again finds that complainant
could not perform the essential functions of a City Carrier position,
with or without reasonable accommodation. Further, we also find that
to the extent that complainant sought to be accommodated by only having
to answer the telephone and perform filing duties, the Rehabilitation
Act does not require the agency to consider accommodating complainant's
accommodations by creating a make work assignment. See Saul v. USPS,
EEOC Appeal No. 01970693 (May 10, 2001). As a result, we again find
that complainant failed to demonstrate that he was a qualified individual
with a disability.
Thus, after a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A13517 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
January 28, 2003
__________________
Date