0120072271
08-06-2009
Eugenio Bermudez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugenio Bermudez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072271
Hearing No. 510-2006-00158X
Agency No. 1H-341-0012-05
DECISION
Complainant appeals to the Commission from the agency's decision
dated March 2, 2007, finding no discrimination. In his complaint,
dated October 25, 2005, complainant alleged discrimination based on sex
(male) and disability (back & neck) when on September 2, 2005, he was
informed not to report to his new bid assignment on September 3, 2005,
because no work was available for him
After completion of the investigation of the complaint, complainant
requested a hearing but later withdrew the request. The agency
then issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incident. The agency stated that during the relevant
time period at issue, complainant was employed as a Transfer Clerk,
assigned to a modified limited duty job due to his medical restrictions
since December 27, 2004. The agency indicated that in spite of this
limited duty assignment, complainant bid on a Ramp Clerk's job for which
he was not physically qualified. The agency noted that it was not clear
how complainant's bid made it through the system in view of that, but
it did mistakenly. However, when it became apparent that complainant
was slated to begin a job for which he had permanent restrictions,
the Supervisor of Distribution Operations told him that he would not be
able to fill the job. Complainant acknowledged that he could perform
all the duties and responsibilities of the Ramp Clerk position except
for a weight lifting restriction, i.e., lifting up to 35 pounds.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that
the agency action was motivated by discrimination. It is noted that
complainant has not claimed that he was denied a reasonable accommodation.
To the extent that complainant may be alleging that he was denied a
reasonable accommodation, we find that complainant has not shown that
he was denied a reasonable accommodation. Complainant was clearly
assigned to a modified position and despite his claim, it is noted that
complainant was not entitled to an accommodation of his choice, i.e.,
other employees' assistance lifting the weightier packages. There is no
indication that he was required to work beyond his medical restrictions.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (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
8/6/09
__________________
Date
2
0120072271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013