01a00685
09-13-2000
Gregory Lewis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.
Gregory Lewis v. United States Postal Service
01A00685
September 13, 2000
.
Gregory Lewis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(S.E./S.W. Areas),
Agency.
Appeal No. 01A00685
Agency No. 4G-770-0729-98
Hearing No. 330-99-8167X
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 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), 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).
Complainant alleges he was discriminated against on the bases of physical
disability (ankle, lungs, shoulder), mental disability (stress), and
reprisal (prior EEO activity), when the following occurred: (1) he was
not allowed to see an Employee Assistance Program (EAP) Counselor; (2) he
was denied Leave Without Pay (LWOP); and (3) documentation was requested.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Carrier at the agency's Tomball
Post Office, Houston, Texas facility, filed a formal EEO complaint with
the agency on August 8, 1998, alleging that the agency 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). The AJ issued a
decision without a hearing, finding no discrimination.
In her decision, the AJ proceeded to examine the agency's articulated
reasons for its actions. Specifically, the AJ found that complainant
initially did not initially request to see an EAP Counselor, but rather,
simply requested LWOP. Thus, agency officials were not aware that
he wished to see an EAP Counselor when his LWOP request was denied.
Furthermore, the AJ also found that complainant's LWOP request was
initially denied because the maximum number of employees already had
the day off. However, the evidence revealed that when complainant
later submitted a sick leave request for .5 hours, his request was
approved the same day. Agency officials averred in their affidavits
that they requested medical documentation from complainant because his
leave request was not timely submitted. Finding no dispute of material
facts, the AJ recommended that the agency issue a final decision finding
no discrimination.
On September 30, 1999, the agency issued a final decision adopting the
AJ's Recommended Decision. Complainant appealed the agency's final
decision, but submitted no contentions on appeal.
After a careful review of the record, the Commission finds no basis
to disturb the AJ's decision. We note complainant failed to submit
any medical documentation or otherwise support his contention that he
is an individual with a disability. Assuming for the sake of argument
that complainant is an individual with a disability, we find he failed
to establish a causal connection between his disability or prior EEO
activity, and the actions complained of herein. Furthermore, complainant
failed to produce any evidence that would establish a genuine dispute of
material fact that the agency's reasons for its actions were a pretext
for discrimination. Complainant did not dispute that the agency approved
his sick leave request once he alerted them that he wished to see an
EAP Counselor. Furthermore, he failed to establish that the agency's
reasons for requesting documentation to support his leave request lacked
credibility or were motivated by a discriminatory motive.
We therefore find that in all material respects, the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Therefore, after a careful review of
the record, and 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 13, 2000
__________________
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.