01974505
11-19-1999
Freamon Blackmon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Freamon Blackmon, )
Complainant, )
) Appeal No. 01974505
v. ) Agency No. 4H310100396
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black), color (black), sex
(male), age (48), and physical (paint fume allergy), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq.; the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq.; and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791, et seq.<1> Complainant claims that he was
discriminated against when he was denied a work assignment in the South
Macon Station and sent home on August 21, 1995. Complainant filed a
formal EEO complaint on October 10, 1995, and the agency issued its FAD
on April 3, 1997, finding no discrimination.<2> The appeal is accepted
in accordance with EEOC Order No. 960.001. For the reasons that follow,
the FAD is VACATED and the complaint is DISMISSED.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's South Macon Processing
and Distribution Center (PDC), in Georgia. Because of a severe allergy
to paint fumes, complainant had been �detailed� for approximately one
year to the Customer Service division at the South Macon Station (SMS)
as a means of avoiding the frequent paint fumes present at the PDC,
which was located in the Main Post Office building. However, the PDC
Plant Manager (PMC) gave complainant written notice terminating this
accommodation effective April 1, 1995, concluding that the agency had
no further responsibility to provide an accommodation. By letter dated
March 23, 1995, addressed to PMC, complainant requested a reasonable
accommodation for his �life-threatening� paint fume allergy, asking for
a light duty assignment to permit him to continue in his present detail
assignment. PMC denied the request, noting that she did not have the
authority to ask the Postmaster (PM) to allow complainant to continue in
his present detail. When the PM realized that complainant did not have
a light duty assignment, he terminated the detail, noting that it was a
violation of the union agreement to allow complainant to continue in the
detail without a light duty assignment authorized by PMC. On August 21,
1995, although suitable work was available at the SMS, PM would not allow
complainant to report for work at the SMS, and complainant was sent home.
According to the affidavit of complainant's supervisor, complainant was
not permitted to work at the SMS as of August 26, 1995, and it appears
that he did not return to work at his bid position in the Main Post Office
building after this time because of the risk of exposure to paint fumes.
The record further shows that complainant was requested to participate
in two �pre-disciplinary� interviews, in December 1995 and January
1996, concerning his ability to remain employed by the agency given
his dangerous paint fume allergy. Subsequently, complainant received a
Notice of Proposed Removal dated March 4, 1996, and a Notice of Removal
dated March 21, 1996. The reason for removal was stated as: �Inability
to work in an environment containing wet paint.�
Complainant appealed his removal to the Merit System Protection Board
(MSBP). On May 28, 1996, the MSBP issued a decision on this matter
indicating that the parties had entered into a lawful settlement
agreement. The settlement agreement, executed on September 28, 1996,
states that it �resolve[s] all issues related to the [complainant's
termination for inability to work in an environment containing wet paint]
whether [or not] it pertains to this case and the grievance procedure
whether presently filed or not.�
Because it appears that complainant did not work from the time he was sent
home on August 21, 1995, until he was reinstated under the terms of the
settlement agreement, we find that the agency's initial refusal to allow
complainant to work in the SMS is part of the same fact pattern giving
rise to his eventual termination, and is not a distinct issue apart
from the termination. Therefore, because the issue on appeal before
us is part of, or �related to� the same matter appealed to the MSPB,
and covered by the settlement agreement as such, jurisdiction lies in
the MSPB, and the matter is not appropriately before the Commission at
this time. Accordingly, this matter is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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.F.R.).
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:
November 19, 1999
__________________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on: _________________________.
__________________________1On 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.
2Rather than addressing the procedural issue presented by this complaint,
the FAD addressed the merits, finding no discrimination.