Dean Albrecht, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 19, 2000
01980298 (E.E.O.C. Dec. 19, 2000)

01980298

12-19-2000

Dean Albrecht, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Dean Albrecht v. United States Postal Service

01980298

December 19, 2000

.

Dean Albrecht,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01980298

Agency No. 4H-335-1160-95

Hearing No. 150-96-8129X

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of the Rehabilitation

Act of 1973,<1> as amended, 29 U.S.C. � 791 et seq.<2> The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was

discriminated against on the basis of disability (lower back injury)

when he was not granted the opportunity to train as an acting supervisor.

For the following reasons, the Commission AFFIRMS the FAD.

The record reveals that in April of 1995, complainant, a PS-05 Clerk

at the agency's Clearwater, Florida, facility, submitted an application

to obtain training as an acting supervisor. Complainant's request was

forwarded to the facility's Postmaster (PM), and complainant's supervisor

(CS) was asked for input regarding the request. CS indicated that

complainant had not worked for him long enough to determine whether he

was a good candidate for acting supervisor training. Moreover, since

complainant returned to work from an extended absence, he exhibited

attendance problems over a five month period.<3> CS testified that

other employees who exhibited poor attendance were also not allowed

to participate in acting supervisor training unless their attendance

improved. The PM stated that his determination to deny complainant's

request was based on his lack of credibility, honesty and integrity.

For example, the PM testified that when he and complainant were

discussing a limited duty job offer, complainant stated that he could

obtain a total medical clearance from his physician if the PM offered

him a Letter Carrier position.

Believing he was the victim of discrimination, complainant filed a formal

EEO complaint with the agency on June 12, 1995. At the conclusion of

the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of disability discrimination. Specifically, the AJ found that even

assuming, arguendo, that complainant demonstrated that he is a qualified

individual with a disability under the Rehabilitation Act, complainant

failed to establish that there were similarly situated individuals outside

of his protected groups who received better treatment. The AJ found that,

in fact, the record indicates that no individual with an established poor

attendance record has been allowed to train as an acting supervisor.

In addition, the AJ noted that there was no evidence that any other

individual who informed the facility Postmaster that he or she was capable

of getting their restrictions changed through a medical doctor in order

to obtain a desired position was then given that position. The agency's

final decision implemented the AJ's decision. Complainant makes no new

contentions on appeal, and the agency requests that we affirm its final

decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. Even assuming

that complainant was an individual with a disability, we note that

complainant failed to either establish a nexus between his disability

and his attendance problems or to present evidence that there were

any similarly situated non-disabled persons who had a record of poor

attendance and yet were allowed to obtain acting supervisor training.

We thus discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 19, 2000

__________________

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3 CS stated that while he knew complainant had an impairment, he did

not consider him to be �handicapped.�