Andrzej J. Rafalski, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01a00746 (E.E.O.C. Mar. 9, 2000)

01a00746

03-09-2000

Andrzej J. Rafalski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Andrzej J. Rafalski, )

Complainant, )

)

v. ) Appeal No. 01A00746

) Agency No. 4K-220-0050-97

William J. Henderson, ) Hearing No. 100-98-7047X

Postmaster General, )

United States Postal Service, )

Agency. )

________________________________)

DECISION

The Commission finds that the agency's October 6, 1999 decision finding

that the agency did not discriminate against complainant based on

complainant's sex (male), disability (herniated lumbar disc), and in

retaliation for prior protected activity, was proper.<1> Complainant

alleged in his complaint that he was discriminated against when:

On December 17, 1996, management misrepresented the elements of a proposed

job to complainant's physician.

On December 18, 1996, complainant was threatened into accepting a modified

job offer that was in violation of his medical restrictions and which

relocated him to a different postal facility.

Complainant requested a hearing before an EEOC Administrative Judge.

An administrative judge issued a decision dated August 2, 1999 without

holding a hearing. The Commission finds that summary judgment was

appropriate because the material facts were not in dispute. Furthermore,

the Commission finds that the administrative judge properly acted within

her discretion when she denied complainant's request for sanctions

against the agency. The administrative judge found that complainant

was not aggrieved in claim 1 and in his claim that he was threatened to

be placed in leave without pay status if he did not accept the modified

job offer. The administrative judge found that complainant was not placed

in leave without pay status. The administrative judge found that even if

complainant were aggrieved, complainant failed to present any evidence

to show that the agency's actions were motivated by discriminatory bias

on the bases of sex and disability or in retaliation for complainant's

prior protected activity.

In the agency's October 6, 1999 decision the agency concurred with

the decision of the administrative judge. The Commission finds that

complainant has failed to show that: (1) the agency misrepresented the

elements of a proposed job to complainant's physician; (2) he accepted

the December 1996 modified job offer;<2> or (3) that he was somehow

punished for not accepting the December 1996 modified job offer. In an

affidavit, the Supervisor, Customer Service stated: �[Complainant]

never accepted this position [in the December 1996 offer], he was never

placed in that position, nor was ever placed in a LWOP status.� After

reviewing complainant's arguments on appeal and the complete record,

the Commission finds that the administrative judge correctly determined

that complainant failed to show by a preponderance of the evidence that

the agency's actions at issue in claims 1 and 2 were motivated in anyway

by prohibited discriminatory animus.

The agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 9, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2The Permanent Modified Job Offer is dated December 16, 1996. Although

it is not fully clear when the offer was presented to complainant,

complainant apparently was presented with the offer by, at the latest,

December 18, 1996.