Darcy Johnson, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 11, 2009
0320090056 (E.E.O.C. Jun. 11, 2009)

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