0120062827
10-12-2007
Frederick C. Talbot, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frederick C. Talbot,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200628271
Agency No. 1F-957-0033-05
Hearing No. 370-2006-00032X
DECISION
Complainant filed an appeal from the agency's final action dated
March 24, 2006, finding no discrimination with regard to his complaint.
In his complaint, dated May 25, 2005, complainant alleged discrimination
based on age (DOB: 5/5/1949), disability (shoulder), and in reprisal for
prior EEO activity when: (1) on April 8, 2005, he was removed from his
rehabilitation position in maintenance and involuntarily assigned to
mail processing; (2) on May 14, 2005, he was involuntarily reassigned
to a Mail Processing Clerk position at the Royal Oaks Post Office; and
(3) on June 6, 2005, he was given a second involuntary reassignment.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
14, 2006, the AJ issued a decision without holding a hearing, adopting
the agency's motion for such, finding no discrimination. The agency's
final action implemented the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate, as no
genuine dispute of material fact exists. After a review of the record,
the Commission also finds that assuming arguendo that complainant had
established a prima facie case of discrimination, the agency articulated
legitimate, nondiscriminatory reasons for the alleged actions. The record
indicates that complainant began his employment with the agency on August
10, 1991, and began his career appointment as a Rural Carrier on July
15, 2000. In February 2001, he sustained an injury to his shoulder,
and since that time the agency provided him with a series of limited
duty assignments within his medical limitations.
With regard to claim (1), the record indicates that prior to April 8,
2005, complainant worked in maintenance doing lock changes. As a result
of the union's grievance filed on October 25, 2004, complainant and five
other limited duty employees were moved back to their original units.
The union claimed that these six limited duty employees were taking work
away from the APWU employees and carriers should not be used for changing
locks. Complainant's original unit was the Royal Oaks unit, thus, he was
returned to this unit per the grievance decision. Complainant's manager
stated that she created a job offer, i.e., the duties included changing
customer locks, based on complainant's documented medical restrictions
with lifting restrictions of 25 pounds but he refused to accept this
offer.
With regard to claim (2), the manager stated that she provided complainant
with another job offer, i.e., the duties included delivery of Express
Mail, verifying UBBM (waste mail), answering telephones, delivery
confirmation scanning, changing locks, and computer data entry, based
on his medical documentation, with 25 pounds lifting restrictions.
Complainant accepted this offer on May 11, 2005 under "protest" and
"duress." This offer in claim (2) was a result of the change in
assignment in claim (1).
With regard to claim (3), the agency stated that it changed the above
job offer's job title from CFS Clerk to Mail Processing Clerk since
his duties were more consistent with a title of Mail Processing Clerk.
The agency also stated that this new job offer reflected complainant's
new lifting restrictions of 10 pounds, rather than 25 pounds. The agency
noted that this new job was also found to be suitable by the OWCP.
After a review of the record, the Commission agrees with the agency that
complainant failed to rebut the agency's legitimate, non-discriminatory
reasons for the alleged job offers. Assuming (without deciding)
that complainant was an individual with a disability, the Commission
finds that complainant failed to show that he was denied a reasonable
accommodation or that any agency actions were motivated by discrimination.
Complainant does not allege that the agency's job offers at issue were
in violation of his medical restrictions
Accordingly, the agency's final action is AFFIRMED.
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
October 12, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036