01A14151_r
03-06-2002
Thomas J. Pigott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas J. Pigott v. United States Postal Service
01A14151
March 6, 2002
.
Thomas J. Pigott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14151
Agency No. 1-J-486-0005-01
DECISION
Complainant appealed to this Commission from the agency's dismissal
of his employment discrimination complaint for stating the same
claim previously raised, pursuant to 29 C.F.R. � 1614.107(a)(1).
In his complaint, complainant alleged discrimination on the basis of
disability (muscular-skeletal disorder). Initially, the agency accepted
complainant's claim for investigation concerning the denial of overtime
work from July 27, 2000 to present. Complainant disagreed with the
agency's definition of his complaint, arguing that it should include:
(1) The agency limited, segregated, and classified complainant in a
way that adversely affected his employment opportunities by maintaining
that he has one certain area of responsibilities, 2nd floor main office;
(2) Complainant made reasonable requests for accommodations such as a
fourteen inch dust mop, right arm stabilizer, and medical statements
made to assist complainant and the agency with his ability to perform
additional duties. The agency refuses to return complainant to
additional duties because it assumes, correctly or incorrectly, that
complainant's disability-related occupational injury creates an increased
risk of further occupational injury and workers compensation costs; and
A comparative employee was not allowed overtime when first brought
to the maintenance department. After filing grievances and a[n] EEO
complaint, management made an agreement that if he submitted medical
documentation that says he can work overtime, management would allow
overtime. The comparative employee settled the grievance and EEO with
back pay, and the right to work overtime. He is not limited or segreated
to where he works, he is not limited to his rehabilitation job offer.
Although complainant has brought medical documentation to allow overtime,
no overtime has been offered.
The agency found that complainant's accepted claim, along with his
comments disputing the definition of his claim, were addressed in a prior
EEO complaint. See Pigott v. United States Postal Service, EEOC Appeal
No. 01981873 (August 17, 2001), req. for recons. pending EEOC Request
No. 05A11155. In this prior complaint, an EEOC Administrative Judge
(AJ) found, inter alia, that complainant had not been discriminated
against on the basis of disability because there were no overtime jobs
within complainant's restrictions. See Pigott v. United States Postal
Service, EEOC Hearing No. 230-97-4058X, at 24-25, (1997). The AJ also
noted that complainant received his assignment to work on the 2nd floor
as settlement of a union grievance, and a �toy� mop as an accommodation.
See id. at 5-6.
Complainant argues that the present complaint is different, noting that
the denial of overtime involved different dates. Complainant has shown
nothing, however, to indicate that the nature of the overtime jobs, or
his medical condition has changed.<1> Therefore, the Commission finds
that the present complaint involves the same matters previously addressed.
CONCLUSION
Accordingly, the agency's dismissal is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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
March 6, 2002
__________________
Date
1Complainant presents a letter from his
physician, clearing complainant to perform any overtime work within his
previously established medical restrictions. This does not raise a new
issue for a separate complaint - the prior decision clearly found that
no overtime work was available within complainant's restrictions.