0120113002
02-21-2013
James P. Flynn, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
James P. Flynn,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113002
Hearing No. 541-2009-00188X
Agency No. 1E-801-0018-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 26, 2011, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission affirms the Agency's finding that Complainant failed to demonstrate that he was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Denver General Mail facility in Denver, Colorado. On March 2, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability, age (57), and reprisal for prior protected EEO activity when on or about December 15, 2008, he became aware that his accommodations (allowing him to work the day shift and to work away from the machines), were being discontinued and since that date, he has not received a response to his request to continue being reasonably accommodated. Initially, Complainant requested a hearing; however, his hearing request was dismissed and the matter remanded to the Agency for a FAD when the Administrative Judge (AJ), among other things, sanctioned Complainant for non-compliance with her orders.
The record reveals that Complainant and all of the other employees in his section were issued letters on December 4, 2008, notifying them that their bid positions were being abolished, effective January 16, 2009. Management noted that the letters were issued in accordance with the National Agreement with the APWU as well as the local agreement. A meeting was held where employees were all informed about the process and advised of their rights related to the abolishment of their bid positions. As a result of this change, Complainant became an Unassigned Regular Clerk, effective January 17, 2009. He was provided a work schedule of 3:00 a.m. to 11:50 a.m. with Saturday and Sunday as his nonscheduled days. Complainant alleged that management was attempting to abolish Tour 2 and force the older workers to retire.
Complainant was diagnosed with depression and sleep apnea in the early 1990s and again in 2004. He was diagnosed with asthma in 1995. Complainant indicated that his impairments are permanent and that management was aware of his conditions.
After Complainant was told of his new start time he alerted management that he had an accommodation. He was told to tell his new supervisor about his accommodation. He told her and she asked that he provide documentation and meet with the DRAC. Complainant maintained that after he submitted information management failed to respond to his reasonable accommodation request. Management however, maintained that Complainant elected not to participate in the reasonable accommodation process. Specifically, the investigative file contains a January 20, 2009 letter acknowledging Complainant's request for reasonable accommodation and providing notice that in order for the reasonable accommodation committee to review the Complainant's request, his physician needed to provide objective medical documentation regarding his need for daytime hours. Despite being notified of a scheduled DRAC meeting on February 26, 2009, to review his request for reasonable accommodation, Complainant declined to attend or otherwise participate in the meeting. Consequently, Complainant was notified by letter on March 2, 2009, that the DRAC did not meet due to his non-participation and his request for reasonable accommodation was closed.
CONTENTIONS ON APPEAL
In his May 2011 appeal, Complainant requested an extension of time to complete his appeal. He explained that he had undergone several serious health problems including an operation to repair his hip and left femur. He contended that because of his failing health he had not been able to concentrate on his appeal. Therefore, he requested a thirty day extension until July 2011 to complete his appeal.
ANALYSIS AND FINDINGS
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. We find that even if we assume arguendo that Complainant established a prima facie case of age, disability and reprisal discrimination as to all bases, the Agency has articulated legitimate nondiscriminatory reasons for its actions, namely, that Complainant's entire unit was abolished due to the repositioning of the workforce. The Agency explained that while a position was found for Complainant it started at a different time than he was used to. When he requested a reasonable accommodation to change the time to a day shift, he was told to talk to his new supervisor. The record shows that the new supervisor passed Complainant's request to the DRAC but that Complainant failed to provide requested information and failed to attend the accommodation meeting. Therefore, his request was closed. The Commission has long held that a Complainant has a duty to provide requested medical information to support an accommodation request.1
Furthermore, we find that Complainant has failed to establish discrimination. We further note that although Complainant, in May 2011, sought additional time to file matters on appeal, he never submitted those matters. Finally, we note that other than Complainant's conclusory statements, he has not provided any evidence which suggests that the Agency was out to abolish all Tour 2 jobs and force senior Clerks to retire. Again, we note that the record does not support this argument as the Agency found positions for not only Complainant but those on Tour 2. We find that Complainant has failed to show that the Agency's reasons were pretext for discrimination. Accordingly, we find that the preponderance of the evidence of record does not establish that discrimination occurred.
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 (November 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
__2/21/13________________
Date
1 The Commission has recently held that if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to the requested accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (February 16, 2012).
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0120113002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013