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.