John Cyncar, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 1, 2007
0520070348 (E.E.O.C. May. 1, 2007)

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