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
2
0520090674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090674