Daniel Parker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionOct 23, 2009
0520090674 (E.E.O.C. Oct. 23, 2009)

0520090674

10-23-2009

Daniel Parker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


Daniel Parker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Request No. 0520090674

Appeal No. 0120081308

Hearing No. 410-2007-00259X

Agency No. 4H-300-0014-07

DENIAL

Complainant timely requested reconsideration of the decision in Daniel

Parker v. United States Postal Service, EEOC Appeal No. 0120081308

(August 7, 2009). 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).

The record reveals that complainant is a mail carrier assigned to the

Marietta, Georgia area. In 2003, complainant suffered an injury while

working and was given a limited duty assignment that included both clerk

and carrier duties. In 2006, the agency implemented a reorganization

in the Marietta area that affected over 20 employees who performed

clerical duties. On October 6, 2006, the agency offered complainant a

position at the Atlanta Air Mail Center, which complainant accepted on

October 12, 2006.

On January 23, 2007, complainant filed a complaint in which he alleged

that the agency subjected him to discrimination on the basis of disability

and in reprisal for prior EEO activity in violation of Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.,

when on October 6, 2006, the agency assigned him to a different work

location with different work hours and off days.

Following an investigation of the complaint, complainant requested a

hearing before an EEOC Administrative Judge (AJ). On December 17, 2007,

the AJ issued a decision without a hearing in which he found that the

agency did not discriminate against complainant. On December 12, 2007,

the agency fully adopted the AJ's findings in a final order.

Complainant appealed the matter to the Commission, and on August 7,

2007, the Commission issued a decision in which it affirmed the final

agency order. Daniel Parker v. United States Postal Service, EEOC Appeal

No. 0120081308 (August 7, 2009).

In requesting reconsideration, complainant maintains that our previous

decision erroneously determined that he was "not removed from the carrier

craft and could not perform positions in the carrier craft." Complainant

maintains that since the time that he was injured in 2003 until October

6, 2006, he worked at the Mount Bethel, Georgia Post Office as a city

carrier with a limited duty assignment performing "in large part carrier

related work." Complainant further maintains that he was involuntarily

transferred into the clerk craft and relocated from the Mt. Bethel Post

Office to the Atlanta Air Mail Center, which required him to commute

an additional seventy miles. Additionally, complainant asserts that

he became a modified clerk at the Air Mail Center on October 6, 2006,

which resulted in the loss of his craft seniority. Complainant asserts

that limited duty work within the carrier craft existed at the Bethel

Post Office at the time period when he was involuntarily transferred to

the Air Port Mail Center.

After a careful review of the record, complainant's request for

reconsideration is denied. Although complainant contends that our

previous decision erroneously stated that he was not removed from

the carrier craft, we note that the October 6, 2006 Modified Offer

reassignment that complainant signed on October 12, 2006 states that

although complainant would perform modified clerk duties in his new

assignment, he remained in the carrier craft. Further, complainant

contends that limited duty work was available in the carrier craft at the

time of his transfer; however, he failed to identify a vacant position

or assignment within his restrictions that he could have been placed in

at Mt. Bethel during the relevant time period. Complainant failed to

provide any evidence to support his bare assertions on these matters. We

remind complainant that on a decision without a hearing, the non-moving

party's opposition must consist of more than mere unsupported allegations

or denials and must be supported by competent evidence setting forth

specific facts showing that there is a genuine issue for trial. See

Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324,

(1986). Complainant failed to show that there was a genuine issue

of material fact in this case, and his arguments do not undermine the

previous decision's finding that he failed to provide any evidence from

which a reasonable fact-finder could find that the agency's legitimate,

non-discriminatory reasons for its actions were pretext for unlawful

discrimination or reprisal.

Thus, after reconsidering the previous decision and the entire record,

the Commission finds 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. 0120081308 remains the

Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

____10/23/09______________

Date

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0520090674

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520090674