0520070348
05-01-2007
John Cyncar, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John Cyncar,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520070348
Appeal No. 0720030111
Hearing No. 320-2001-08380X
Agency No. 4E800033300
DENIAL
The agency timely requested reconsideration of the decision in John
Cyncar v. United States Postal Serv., EEOC Appeal No. 0720030111
(February 1, 2007). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to 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).
In the underlying case, complainant filed a complaint alleging that he was
discriminated against in violation of Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq., (Rehabilitation Act).
Complainant then moved to have portions of his complaint certified as
a class action. He alleged, on behalf of the class, that the agency's
Western Area Region violated the Rehabilitation Act when it treated
qualified individuals with disabilities differently and less favorably
than non-disabled individuals with respect to benefits provided by
the Family Medical Leave Act (FMLA) and that the agency's treatment
of disabled employees with respect to the FMLA resulted in failure
to accommodate their disabilities and the discriminatory issuance
of disability related absences. A hearing was held and an EEOC
Administrative Judge (AJ) certified the class. The agency appealed
the AJ's decision to the Commission and in the aforementioned case,
the Commission affirmed the AJ's certification of the class and reversed
and remanded the case for further processing. Cyncar v. United States
Postal Serv., EEOC Appeal No. 0720030111 (February 1, 2007). The agency
now requests the Commission to reconsider its decision in this case.
In its request for reconsideration, the agency argues that the Commission
erroneously relied upon the decision of Chandler Glover v. United States
Postal Serv., EEOC Appeal No. 01A04428 (April 23, 2001). Specifically,
the agency argues that the case is distinguishable from Glover in that the
FMLA procedures and practices are not under the purview of the Commission.
Second, the agency argues that even if the Commission has jurisdiction
over FMLA procedures, the class is poorly defined and its members are
not identifiable. The complainant argues, among other things, that
the agency previously made these arguments and therefore the request
for reconsideration should be denied. We find that the agency failed to
establish that either the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the appellate decision will
have a substantial impact on the policies, practices, or operations of
the agency. We note that these contentions are the same as those which
the agency raised in the underlying appeal. We remind the agency that a
"request for reconsideration is not a second appeal to the Commission."
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 9-17 (November 9, 1999). As such, after reconsidering
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. 0720030111 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request. The agency shall comply with the Order
as set forth below.
ORDER (E0900)
The Commission hereby certifies the class as compromised of individuals
with disabilities in the agency's Western Area Region who were
discriminated against under the Rehabilitation Act when they were denied
reasonable accommodation: (1) after they applied for but were denied
leave; (2) were subjected to disciplinary actions for leave violations
after their FMLA status was denied; (3) were unreasonably required to
re-certify their medical conditions.
The agency is ORDERED to process the remanded claims in accordance with
29 C.F.R. � 1614.204(e) et seq. Within fifteen (15) calendar days of
the date this decision becomes final, the agency shall notify all class
members of the acceptance of the class complaint in accordance with the
requirements of � 1614.204(e). Within thirty (30) calendar days of the
date this decision becomes final, the agency shall provide the appropriate
EEOC District Office with a copy of the notice sent to the class members,
and shall request the appointment of an AJ, who shall undertake the
continued processing of the complaint pursuant to � 1614.204(f) et seq.
The agency shall provide a copy of the notice of certification and request
for appointment of an AJ to the Compliance Office, as referred below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
__5/1/07_________________
Date
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0520070348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070348