0320090056
06-11-2009
Darcy Johnson, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darcy Johnson,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090056
MSPB No. CH0752080542I1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a Final Order issued by the Merit
Systems Protection Board (MSPB) concerning his claim of discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
At the time of the events at issue, complainant was a preference-eligible
Mail Handler at the agency's Detroit, Michigan Processing and Distribution
Center. In October 2007, he requested a light duty assignment due to
injuries to his back and knees. Some months later, complainant's
subsequent requests for continued light duty were denied based on
management's assessment that there was no productive work available
within his medical restrictions.
In an appeal filed with the MSPB, petitioner alleged that he was
discriminated against on the basis of disability (back and knees) when
he was constructively suspended (placed on enforced leave) for various
periods between October 2007 and May 26, 2008, and June 2 to present.
The record indicates that complainant was granted a 30-day light duty
assignment starting on May 27, 2008, that was prematurely terminated on
June 2, 2008.
A hearing was held, and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that neither complainant's absences
prior to May 27, 2008, nor his continuing absence after June 27, 2008,
constituted constructive suspensions. Therefore, he dismissed these
claims for lack of jurisdiction. The AJ found, however, that the early
termination of complainant's May 27 - June 27, 2008 light duty assignment
on June 2, 2008, constituted a constructive suspension of 26 calendar
days. In reaching this conclusion, the AJ found that the agency failed
to provide petitioner with the opportunity to present a response to
the abrupt cancellation of his light duty work. The Commission notes,
however, that the AJ found that petitioner did not establish that he was
a qualified person with a disability, and as such, he could not prevail
on his discrimination claims.
Both petitioner and the agency appealed to the full Board. Thereafter, the
Board issued its decision upholding the AJ's finding of no constructive
discharge for the periods prior to May 27, 2008, and after June 27, 2008.
However, the Board reversed the AJ's finding of constructive suspension
with regard to the premature termination (on June 2, 2008) of the
30-day light duty assignment which began on May 27, 2008. The Board
noted that the termination of a light duty assignment was not, per se,
an adverse action. While recognizing that petitioner was "faced with
the unpleasant alternatives of returning to work with duties outside
his medical restrictions or requesting leave," the Board nonetheless
found that petitioner's decision not to return to his position was
voluntary. As such, the Board found it had no jurisdiction over the
entire claim, including petitioner's affirmative defenses.
When the MSPB has denied jurisdiction in such matters, the Commission
has held that there is little point in continuing to view the matter
as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the
case will be considered a "non-mixed" matter and processed accordingly.
See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126
(July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883
(October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance
with these principles, Petition No. 0320090056 hereby is administratively
closed, and the matter is referred to the agency for further processing
as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the agency
is required to process his allegations of discrimination pursuant to
29 C.F.R. � 1614.105 et seq. The agency shall notify petitioner of the
right to contact an EEO counselor within forty five (45) days of receipt
of this decision, and to file an EEO complaint, subject to 1614.107.
The date on which the petitioner filed the appeal with the MSPB shall
be deemed the date of initial contact with the EEO counselor. In the
alternative, Petitioner shall have the right to file a civil action in
an appropriate United States District Court as detailed below.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
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,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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
June 11, 2009
__________________
Date
2
0320090056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090056