0120072833
12-02-2009
Jack C. Loesch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Jack C. Loesch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120072833
Agency No. 4A088013106
DECISION
Complainant appeals from the agency's May 5, 2007 final decision
concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Complainant alleged that the agency
discriminated against him on the bases of age (56) and disability (hands,
arms, neck, back, and shoulders) when on September 6, 2006, he was issued
a 14-day suspension for unsatisfactory performance. 1
Complainant, a full time City Letter Carrier, was suspended for failing
to scan a piece of registered mail as "Notified." According to
Customer Service Supervisor (S), complainant acknowledged during a
pre-disciplinary meeting, that he signed for the registered mail item
in question and that his signature appeared in a mail "log" next to
the item's registered number. When S asked whether he knew it was a
carrier's responsibility to scan accountable items such as this, S states
that complainant responded, "It was an oversight; this is Mickey Mouse."
Pursuant to the agency's progressive discipline system, S recommended that
complainant be suspended for 14 days, and the Postmaster (P) concurred.
Complainant asserted that the agency imposed the discipline because of
his age and disability. He stated that the agency wants to "move him
out" because he cannot work as fast as other employees, even though he
meets performance standards.
In its final decision, the agency found that complainant failed to
establish that age was the motivating factor for his discipline in view
of the fact that younger carriers, including one outside of his protected
age group, were disciplined for mishandling special mail. With respect to
disability, the agency found that complainant failed to establish that he
was subject to work restrictions or had an impairment that limited a major
life activity, and failed to establish that he was treated differently
than similarly situated employees outside of his protected group.
On appeal, complainant states that a delivery log and a statement from
the recipient of the registered mail item in question establish that
he did not take possession of the item or deliver the item, and thus,
was not responsible for scanning it. Complainant also takes issue with
S's statements that S questioned complainant about his signature in the
log and that complainant said it was his. Finally, complainant asserts
that the comparative employees that he identified as having missed scans
never received formal discipline.
As an initial matter, it is unclear from the log whether complainant
was responsible for the item of registered mail in question. However,
complainant stated that his recollection was hazy at the time S spoke
with him. Therefore, we deem it more likely than not that complainant
admitted being responsible for the item and that the suspension stemmed
from his admission.
The record reveals that in connection with the 14-day suspension at issue,
the agency considered prior discipline complainant had received including
a 7-day suspension issued on April 4, 2005, a 14-day suspension issued
on July 12, 2005, and a 7-day suspension issued on June 1, 2006.2 Upon
review, we find complainant failed to show that he was subjected to
discrimination as alleged. Although complainant names other alleged
comparatives he claims did not receive formal discipline for missing
scans, he does not claim that these comparatives were supervised by the
same supervisor as he was. In fact, the record reveals that three of
the cited comparatives who failed to perform delivery confirmation scans
were issued letters of warning by different supervisors, other than the
supervisor recommending discipline in this case. Moreover, complainant
does not show that the alleged comparatives were treated differently than
he was under the agency's progressive disciplinary system. Furthermore,
even if the agency's decision to suspend complainant was somehow in
error, he has failed to show that the discipline was motivated by age
or considerations of disability.
Accordingly, the agency's final decision 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
December 2, 2009
__________________
Date
1 Initially, complainant also alleged that he was discriminated
against when the agency issued him a 7-day suspension on June 1, 2006.
The agency issued a partial dismissal of this issue on December 15,
2006, on the grounds complainant raised the matter in another complaint
previously accepted by the agency. Complainant does not challenge the
partial dismissal on appeal and we find no basis to disturb the agency's
dismissal.
2 Both of the disciplinary actions issued in 2005 were reduced to 3-day
suspensions.
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0120072833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072833