Edwin J. Seiffert, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01995488 (E.E.O.C. Mar. 23, 2000)

01995488

03-23-2000

Edwin J. Seiffert, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.


Edwin J. Seiffert, Jr., )

Complainant, )

) Appeal No. 01995488

v. ) Agency No. 1C-451-0085-98

) Hearing No. 220-99-5003X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid Atlantic Region), )

Agency. )

____________________________________)

DECISION

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

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405).<2> Complainant alleges he was

discriminated against on the bases of physical disability (diabetes)

and in reprisal for prior protected activity when his request for leave

was disapproved on December 12, 1997. For the following reasons, the

Commission affirms the agency's final decision.

The record reveals that complainant, a Clerk at the agency's Processing

and Distribution Center in Cincinnati, Ohio, filed a formal complaint on

February 14, 1998, alleging that the agency had discriminated against

him as referenced above. 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 found that complainant failed to establish a prima facie case

of retaliation because he failed to show that the named responsible

management official, his supervisor, was aware of complainant's prior

protected activity at the time he disapproved the leave request. The AJ

also found that although complainant established a prima facie case

of disability discrimination under a theory of disparate treatment,

the agency articulated a legitimate, nondiscriminatory reason for

disapproving the leave request, namely that complainant was needed to

work on the day in question.<3> Complainant's supervisor testified that

December 15, 1997 was the "busiest day of the year," and the facility's

"needs of service" precluded him from granting complainant the requested

leave.<4> Since complainant failed to refute his supervisor's explanation

or present any evidence tending to establish that the explanation was

a pretext for discrimination, the AJ concluded that complainant failed

to prove discrimination. The agency's final decision implemented the

AJ's decision. Neither party submitted a statement on appeal.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

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

Administrative Judge 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 that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

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

We do not reach the issue of whether or not the AJ correctly held that

complainant is a "qualified individual with a disability" within the

meaning of the Rehabilitation Act. Based on our review of the record, we

find that even assuming arguendo complainant is a "qualified individual

with a disability," we discern no basis to disturb the AJ's ultimate

conclusion that complainant failed to establish that the disapproval of

his leave request was motivated by either discriminatory or retaliatory

animus. In reaching this conclusion, we note that complainant's

supervisor testified credibly to approving numerous leave slips for

complainant whenever the "needs of service" did not urgently require

complainant's attendance. Therefore, after a careful review of the

record, including arguments and evidence not specifically addressed in

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

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

3/23/00

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date 1 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 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at WWW.EEOC.GOV.

2 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. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.

3 The record does not support a finding that complainant's request for

leave was intended as a request for a reasonable accommodation of his

disability. Moreover, we note that complainant, who worked on Tour 1

(9:30 p.m. - 6:30 a.m.), did not present credible evidence as to why he

needed leave to attend a medical appointment which was scheduled during

the day or that the disapproval of his leave request in any way prevented

him from attending the appointment.

4 One employee was granted emergency leave during this time. Complainant

offered no evidence that he required the requested leave for an emergency

situation.