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.�