0120090299
07-18-2012
James J. Harper, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
James J. Harper,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120090299
Hearing No. 440-2007-00105X
Agency Nos. 4J-600-0192-06; 4J-600-0056-07
DECISION
Complainant timely filed an appeal from the Agency's September 16, 2008, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether there is substantial evidence in the record to support the EEOC Administrative Judge's (AJ's) determination that Complainant failed to establish that he was subjected to discrimination and harassment based on race, sex, disability, and reprisal; and (2) whether Complainant established that he was denied reasonable accommodation for his asserted disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Maywood, Illinois, Post Office. Report of Investigation (ROI), Agency No. 4J-600-0192-06, Investigative Summary, at 2. On March 24, 2006, Complainant suffered an on-the-job injury and was diagnosed with a right should strain and a possible torn rotator cup. Id. at 9. On April 22, 2006, Complainant signed a modified offer of limited duty, which noted that Complainant would case and carry mail for one and one-half hours per day. Id. at 16. The offer noted that Complainant would be required to reach above his shoulder and push/pull for zero to four hours per day. Id. A duty-status report dated May 19, 2006, signed by Complainant's doctor noted that Complainant could intermittently lift 30 pounds six hours per day, push/pull for four hours per day, and lift above his shoulder for three hours per day. Id. An August 8, 2006, medical assessment for limited duty signed by Complainant's doctor noted that Complainant could only perform work with his left hand and was restricted to lifting no more than 30 pounds. Id. An August 8, 2006, duty status report, also signed by Complainant's doctor, noted that Complainant could perform one and one-half hours of continuous lifting and carrying at 20 pounds for six hours per day. Id. at 17.
On August 14, 2006, Complainant's first-level supervisor (S1) offered Complainant a modified job assignment for limited duty. ROI, Agency No. 4J-600-0192-06, Aff. A, at 26. The offer noted that Complainant would be casing letters and flats, which would require 30 pounds of intermittent lifting. Id. The offer also noted that Complainant would be provided a carrier cart when delivering mail. Id. Complainant, however, refused to sign the August 14, 2006, offer because he apparently wanted to submit it to his doctor, feeling that the offer violated his restrictions. ROI, Agency No. 4J-600-0192-06, Investigative Summary, at 17. Complainant indicated that he could only carry items for one and one-half hours per day. Id.
On August 14, 2006, S1 sent Complainant home after he refused to sign the modified offer. Id. Subsequently, the Agency's Injury Compensation Office (ICO) found that the modified offer presented to Complainant was incomplete. Id. On August 22, 2006, at the ICO's request, S1 presented Complainant with revised modified job offer, which Complainant did not sign because he again felt that it went against his restrictions. Id. On August 23, 2006, Complainant signed and accepted an offer of modified assignment for limited duty. ROI, Agency No. 4J-600-0192-06, Aff. A, at 34. The offer noted that Complainant would be delivering mail for four to five hours per day, which would require intermittent carrying of 30 pounds for six hours per day. Id. The offer also noted that Complainant would be required to carry 20 pounds of lifting continuously for one and one-half hours per day. Id. The offer further noted that Complainant could use a carrier cart to assist him with mail delivery. Id. At the bottom of the signed offer Complainant noted, "Incomplete job offer goes against doctors restrictions of delivering one and a half hours a day." Id. From August 14, through August 23, 2006, S1 did not allow Complainant to return to work and charged Complainant with Absence without Leave (AWOL) for that time period because Complainant refused to sign the modified offers presented to him. Hr'g Tr., at 52-53.
On September 21, 2006, S1 issued Complainant a 7-day suspension memorandum entitled "Failure to Maintain a Regular Schedule." ROI, Agency No. 4J-600-0192-06, Aff. A, at 52. The suspension noted that Complainant was issued a Letter of Warning on July 14, 2006, for failure to follow instructions. Id. The suspension also noted that Complainant had been absent or tardy when:
1) On May 31, 2006, he was charged with 8 hours of unscheduled sick leave;
2) On June 8, 2006, he was charged AWOL for 2.74 hours;
3) On July 5, 2006, he was charged with 8 hours of unscheduled sick leave;
4) On July 12, 2006, he was 13 minutes late;
5) On July 15, 2006, he was 9 minutes late;
6) On July 20, 2006, he was 16 minutes late; and
7) On September 18, 2006, he was charged with 8 hours of unscheduled sick leave.
Id.
Days later, on September 26, 2006, S1 issued Complainant a 14-day suspension entitled "Failure to Follow Instructions." Id. at 58. The suspension noted that on September 25, 2006, Complainant was authorized one hour and 30 minutes of overtime and was instructed to return at 5:00 pm from his delivery route. Id. The suspension noted that although Complainant returned at 5:00 pm, he failed to deliver one hour and 30 minutes of mail. Id.
From October 19, 2006, through January 19, 2007, Complainant indicated that he had to take leave because he was suffering from bronchitis and had to be hospitalized. March 28, 2007, EEO Complaint, at 3. Complainant indicated that he was experiencing daily vomiting, heavy breathing, and severe coughing. Id. On December 21, 2006, management approved Complainant's request for 120 hours of sick leave beginning on December 22, 2006, because Complainant reportedly required hospitalized surgery for bronchitis. ROI, No. 4J-600-0056-07, Aff. B, at 43.
On January 17, 2007, Complainant presented management with a medical assessment for a limited-duty assignment, signed by his doctor. Id. at 45. On January 24, 2007, Complainant was notified that his starting time schedule would be changed from 7:00 a.m. to 10:00 a.m. Id. at 49. Other employees were also notified that their schedules were to be changed as well. Id. On January 30, 2007, the Officer-in-Charge (OIC) provided Complainant with an offer of modified assignment, which noted that Complainant would be carrying and casing mail for one and one-half hours. Id. at 53. However, Complainant rejected the offer, noting that he wanted to present the offer to his doctor. Id.
On February 2, 2007, the OIC reportedly ordered Complainant to leave work after Complainant failed to sign another modified offer. On February 20 and 21, 2007, the OIC again sent Complainant home and charged him with Leave without Pay (LWOP) after he again refused to sign a modified job offer. April 12, 2007, EEO Counselor's Report, at 12.
On February 27, 2007, Complainant received a letter from the Family Medical Leave Act (FMLA) Coordinator. ROI, No. 4J-600-0056-07, Aff. B, at 65. Therein, the FMLA Coordinator indicated that Complainant's leave from November 13, 2006, to December 16, 2006, was approved and protected under the FMLA. Id. However, the FMLA Coordinator also noted that the documentation that Complainant submitted on January 5, 2007, did not support incapacitation for FMLA claimed absences beginning on December 22, 2006. Id. The FMLA Coordinator noted that Complainant's doctor did not present sufficient documentation for approval of Complainant's FMLA leave requests sought after December 16, 2006. Id. The FMLA Coordinator therefore noted that Complainant's request for 120 hours of sick leave beginning on December 22, 2006, would not be approved under the FMLA. Id. The FMLA Coordinator noted that Complainant's absences from December 18, 2006, though February 23, 2007, were not protected under the FMLA. Id.
On March 16, 2007, Complainant was issued a Notice of Removal entitled "Failure to Maintain a Regular Schedule." Id. at 67. The Notice of Removal noted that Complainant had been absent when:
1) on December 18-23. 2006, he was charged with 40 hours of sick leave;
2) on December 26-28, 2006, he was charged with 24 hours of sick leave;
3) on January 3-6, 2007, he was charged with 24 hours of sick leave and 8 hours of LWOP;
4) on January 9-13, 2007, he was charged with 40 hours of LWOP;
5) on January 17-18, 2007, he was charged with 16 hours of emergency annual leave (EAL);
6) on February 2, 2007, he was charged with 3.55 hours of sick leave;
7) on February 20-21, 2007, he was charged with 14 hours of LWOP;
8) on February 26-28, 2007, he was charged with 8 hours of sick leave and 8 hours of sick leave without pay;
9) on March 1-2, 2007, he was charged with 16 hours of EAL.
Id.
The Notice of Removal further cited that Complainant previously had been issued the letter of warning, the 7-day suspension, and the 14-day suspension. Id. The letter of removal was reportedly rescinded or reduced. Hr'g Tr., at 56.
Complainant filed two formal EEO complaints on September 29, 2006, and March 28, 2007, respectively. Therein, Complainant alleged that the Agency subjected him to discrimination and harassment on the bases of race (African-American), sex (male), disability, and reprisal for prior protected EEO when:
1. he was presented with a modified job offer that violated his medical restrictions;
2. he was not allowed to work from August 15-25, 2006, and was charged with 35.99 hours of LWOP;
3. on September 25, 2006, he was issued a 7-day suspension;
4. on September 27, 2006, he was issued a 14-day suspension; and
5. on March 16, 2007, he was issued a Notice of Removal.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, which the AJ held on March 20, 2008. At the completion of Complainant's case-in-chief, the Agency moved for a "directed verdict." Hr'g Tr., 159-160. After Complainant objected, the AJ granted the Agency's motion and issued a decision on September 11, 2008.1 The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In particular, the AJ found that Complainant failed to establish a prima facie case based on race, sex, disability, and reprisal. The AJ noted that Complainant failed to provide any evidence that his right arm injury substantially impaired a major life activity. The AJ further noted that Complainant did not offer any evidence of a comparator outside of his protected classes who was treated more favorably than him or offer any evidence that supported an inference of discrimination. The AJ also noted that Complainant admitted that the modified offers provided to him did not require him to work outside of his medical restrictions. The AJ noted that the evidence of the record supported the discipline issued to Complainant. With respect to the issuance of the Notice of Removal, the AJ noted that Complainant admitted that many of his absences were not approved leave under the FMLA. The AJ noted that the record established that Complainant failed to maintain a regular schedule.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he did not refuse to work with respect to the Agency's modified job offer. Complainant contends the he was already working under a modified job offer when management decided to send him home. Complainant contends that nothing changed in his restrictions that warranted a new job offer. Complainant contends that other employees who were similarly situated to him were not sent home for refusing to sign modified job offers, as he was. Complainant also contends that his starting time was changed from 7:00 a.m. to 10:00 a.m. and he was not allowed to case his route. Complainant contends that management harassed and subjected him to disparate treatment for over four years. Complainant contends that he is a qualified individual with a disability who has Carpel Tunnel Syndrome, Tendonitis, and damage to his right shoulder. Complainant contends that management failed to provide him with a reasonable accommodation for his disability. Complainant contends that a certain postmaster was trying to terminate him because he named this postmaster as a responsible management official in prior EEO complaints. Complainant contends that management received directions from this postmaster to subject him to disparate treatment and harassment.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ 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 regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at
� VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Reasonable Accommodation (Claims 1, 2, 3, and 5)
Initially, we find that claims 1, 2, 3, and 5 should be characterized as claims of denials of reasonable accommodation. Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2 (o) and (p). An employee is required to show a nexus between the disabling condition and the requested accommodation. See Hampton v. U.S Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002), (citing Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01953715 (Apr. 22, 1997)); Brown v. U.S. Postal Serv., EEOC Appeal No. 01A42650 (Sep. 2, 2004). For the purposes of this decision, we assume without so finding that Complainant is an individual with a disability. Nevertheless, we find that Complainant failed to establish that he was denied reasonable accommodation for his disability.
The Commission notes that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006-2007, the Commission acknowledges that the AJ appropriately used the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008 to determine whether Complainant is an individual with a disability.
With regard to claim 1, we find that Complainant has failed to establish that the modified job offers he was presented with on August 14, 22, and 23, 2006, violated his medical restrictions. Complainant's restrictions at the time noted that he could perform one and one-half hours of continuous lifting and carrying at 20 pounds for six hours per day. Complainant's restrictions also indicated that he could only perform work with one hand and was restricted to lifting 30 pounds. The modified offer that Complainant signed on August 23, 2006, noted that Complainant would be delivering mail for four to five hours per day and would require intermittent carrying of 30 pounds for six hours per day. The offer also noted that Complainant would require continuous lifting at 20 pounds for one and one-half hours. The offer further noted that Complainant would be provided a cart when delivering mail. We note that Complainant acknowledged that the Agency's offer did not violate his restrictions. Hr'g Tr., at 51.
Further, with respect to claim 2, the record reflects that Complainant was sent home and not allowed to return to work from August 14 through 23, 2006, after he refused to sign the modified job offers presented to him. We note that the initial job offer was revised after Complainant expressed his concerns, but Complainant continued to refuse to sign it.
We note that Complainant did not proffer any evidence showing that there was available work, apart from the modified job offer that he refused, when he was sent home. We note that the Commission has long held that an agency is under no obligation to allow an employee to permanently perform nonessential duties. See Spry v. U.S. Postal Serv., EEOC Petition No. 03980078 (Dec. 11, 1998). We also note that an employer is not required to create a job for a disabled employee, nor is it required to transform its temporary light or limited-duty assignments into permanent jobs to accommodate an employee's disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. U.S. Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and the ADA. EEOC Notice No. 915.002 at 21 (Sep. 3, 1996). Therefore, we find that Complainant has failed to establish that the Agency failed to provide him reasonable accommodation for his disability when was sent home. See Lukawski v. U.S. Postal Serv., EEOC Appeal No. 0120102968 (Apr. 18, 2012) (complainant failed to establish that she was denied reasonable accommodation because she failed to show that there was available work within her medical restrictions on the days when she was sent home early); Vallus v. U.S. Postal Serv., EEOC Appeal No. 0120083169 (Feb. 4, 2010) (complainant failed to establish that she was denied a reasonable accommodation when she was sent home on LWOP after she requested to have her doctor review a modified position offer).
Regarding claims 3 and 5, we note that under the Rehabilitation Act, an employee is not required to use the words "reasonable accommodation" when making a request. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.l. We find that Complainant requested reasonable accommodation when he requested sick leave and FMLA leave. See Corbett v. Gen. Serv. Admin., EEOC Petition No. 03A10017 (Apr. 12, 2001) (requests for paid or unpaid disability-related leave, or for continued employment, can constitute requests for reasonable accommodation); Cottrell v. U.S. Postal Serv., EEOC Appeal No. 07A00004 (Feb. 2, 2001) (where employee disciplined for tardiness subsequently discloses a disability affecting ability to arrive at work on time, her explanation should be construed as a request for accommodation). We also note that it violates the Rehabilitation Act for an employer to discipline an employee for work missed during leave taken as a reasonable accommodation. See Ricco v. U.S Postal Serv., EEOC Appeal No. 07A10007 (Feb. 21, 2002).
We further note that in a case involving excessive absence from work, an individual with a disability may establish that he or she is "qualified" by showing that there is a sufficient nexus between the absences and the claimed disability, and the burden then becomes the agency's to demonstrate that it would pose an undue hardship for the agency to tolerate or excuse an employee's absence. See id (citing Roscoe v. Dep't of the Navy, EEOC Appeal No. 01974138 (Sep. 21, 2000)). Here, with respect to the 7-day suspension and notice of removal, we find that Complainant has failed to establish that his tardiness and absences were related to his shoulder injury or his bronchitis. We find that Complainant has failed to establish a casual connection between his medical conditions and the dates of absence at issue. We note that the record is devoid of medical documentation related to the dates of Complainant's absences cited in the 7-day suspension and Notice of Removal. As such, we find that Complainant has failed to establish that his conditions were related to each one of his absences. See Tsai v. Federal Deposit Insurance Corp., EEOC Appeal No. 0120035347 (June 14, 2007) (complainant failed to establish a nexus between her absences and her impairments because she failed to provide medical documentation to support each one of her absences); Ricco, EEOC Appeal No. 07A10007 (complainant failed to establish that the absences triggering her removal were related to her impairments); Cartwright v. U.S. Postal Serv., EEOC Appeal Nos. 01A13915; 01A14641; 01A23534 (Oct. 31, 2002) (complainant failed to establish a nexus between his absences and his disability because he failed to show any medical documentation to support his assertion). Therefore, because Complainant failed to establish that he was qualified by showing a sufficient nexus, we find that Complainant has not established that the Agency violated the Rehabilitation Act when it disciplined him for his absences.
Disparate Treatment (Claims 3-5)
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, disability, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim 3, S1 noted in the 7-day suspension that Complainant had used sick leave and had been late to work on certain days from May 31, 2006, to September 18, 2006, as noted above. With regard claim 4, S1 noted in the 14-day suspension that on September 25, 2006, Complainant was authorized with one hour and 30 minutes of overtime and was instructed to return at 5:00 pm from his delivery route. S1 noted that although Complainant returned at 5:00 pm, he failed to deliver one hour and 30 minutes of mail. As for claim 5, the Supervisor of Customer Service noted in the Notice of Removal that Complainant had used a combination of sick leave, LWOP, and emergency annual leave from December 18, 2006, to March 2, 2007, as noted above.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant contends, among other things, that a certain postmaster wanted to terminate him because he named this postmaster as a responsible management official in prior EEO complaints. Complainant contends that management received directions from this postmaster to subject him to disparate treatment and harassment.
Notwithstanding Complainant's contentions, we can find no evidence contained in the record that this postmaster gave commands to employees to discriminate against Complainant. We note that Complainant does not dispute he was late or absent from work on the days noted above. Also, the record reflects that a portion of the leave taken by Complainant appeared to be unscheduled. Hr'g Tr., 102-103. We also note that the FMLA Coordinator noted that Complainant's absences from December 18, 2006, though February 23, 2007, were not FMLA protected. The FMLA Coordinator noted that the documentation that Complainant submitted on January 5, 2007, did not support incapacitation under the FMLA.2 Also, the modified offers that Complainant rejected appeared to be within his restrictions. We further note that other employees had their starting times changed as well. Moreover, Complainant acknowledged that he did not believe he was subjected to discrimination based on his race. Hr'g Tr., at 77-78.
Therefore, we find that Complainant has failed to establish that the Agency's articulated reasons were pretext for discrimination or that the Agency was motivated by discriminatory animus towards his race, sex, disability or in reprisal for his prior protected EEO activity.3
Harassment
With respect to Complainant's contention that he was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that these actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). Moreover, Complainant has not shown that the matters at issue here were sufficiently severe or pervasive to demonstrate that he was subjected to harassment.
Therefore, we find that there is substantial evidence in the record to support the AJ's determination that Complainant failed to establish that he was subjected to discrimination and harassment as alleged. Further, even without the AJ's credibility determinations, we find that Complainant failed to meet his burden of proof to prove by a preponderance of the evidence that the Agency's actions were motivated by discriminatory animus toward Complainant's protected classes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 18, 2012
Date
1 The AJ's decision indicates that the AJ considered the Agency's motion for a directed verdict to be the equivalent of a motion for summary judgment. However, we find that the AJ's decision is more appropriately considered as a decision after a hearing. See Duro v. U.S. Postal Serv., EEOC Appeal No. 0120112751 (Oct. 13, 2011); Sims v. U.S. Postal Serv., EEOC Appeal No. 0120093795 (Nov. 2, 2010); Harris v. U.S. Postal Serv., EEOC Appeal No. 0120071623 (June 16, 2009).
2 To the extent Complainant is alleging a violation of the FMLA, the Commission has no jurisdiction over FMLA claims. See, e.g., Jordan v. Dept of Defense, EEOC Appeal No. 0120055250 (Dec. 28, 2006).
3 Although Complainant contends that he was subjected to disparate treatment with respect to claims 1 and 2, we find that these claims are more appropriately characterized as claims of denial of reasonable accommodation.
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0120090299
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013