Edward L. Johnson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120050752 (E.E.O.C. Feb. 16, 2007)

0120050752

02-16-2007

Edward L. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Edward L. Johnson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 01200507521

Agency No. 4F-852-0028-03

Hearing No. 350-2003-08128X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's September 17, 2004 final order concerning

his equal employment opportunity (EEO) complaint alleging employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

Complainant, formerly a City Carrier at the Sierra Vista Station in

Arizona, alleged that the agency discriminated against him on the basis

of disability (Osteoarthritis)2 when he was denied light duty on September

11, 2002 and September 26, 2002.

At the completion of the investigation, complainant timely requested a

hearing before an Administrative Judge (AJ). The AJ held a hearing and

found no discrimination. Specifically, the AJ found that complainant

established a prima facie case of discrimination, and that the agency

articulated legitimate, nondiscriminatory reasons for denying the

light duty request; namely, complainant's request was vague. The AJ

found that the medical certificate recommends clerical duties only,

while the CA-17 indicates specific restrictions. The AJ noted that

the agency officials testified that they felt such documents conflicted

because the CA-17 indicated that complainant could perform his carrier

duties with assistance, while the certificate restricted complainant

to clerical duties only. The AJ further found that management stated

they requested additional medical documentation to support the light duty

request, but complainant never provided such documentation. In addition,

the AJ found that the agency explained that the request was also denied

for budgetary reasons; namely, carriers were allotted to work a certain

number of hours in the budget, and placing an individual on light duty

contributed to the agency running over budget. The AJ found that the

agency noted that unlike with limited duty, light duty is discretionary

because individuals requiring it have not been injured on the job. The AJ

found no evidence of discriminatory animus. The agency subsequently

issued a final order implementing the AJ's decision.

Complainant has raised no new arguments on appeal. Initially, we note

that it was proper for the AJ to analyze the issue at hand only within a

disparate treatment framework because at the beginning of the hearing, the

AJ noted that the parties stipulated to the fact that when the Postmaster

submitted complainant's name to the Reasonable Accommodation Committee,

complainant indicated that he did not want his request for light duty

to be reviewed by the Committee. Accordingly, we find that complainant

was not seeking a reasonable accommodation within the meaning of the

Rehabilitation Act.

After a review of the record in its entirety, it is the decision of

the Equal Employment Opportunity Commission to affirm the final agency

order because the Administrative Judge's ultimate finding, that unlawful

employment discrimination was not proven by a preponderance of the

evidence, is supported by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

February 16, 2007

__________________

Date

1 Due to a new data system, your case has been re-designated with the

above referenced appeal number.

2 Complainant initially alleged race and age discrimination as well.

However, he did not object at the hearing to the framing of the issue as

comprising only the basis of disability. Accordingly, we will assume

that disability is the only alleged basis of discrimination. We also

assume arguendo that complainant is an individual with a disability

pursuant to the Rehabilitation Act.

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0120050752

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036