John J. Connolly, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01976263 (E.E.O.C. Feb. 3, 2000)

01976263

02-03-2000

John J. Connolly, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.


John J. Connolly v. United States Postal Service

01976263

February 3, 2000

John J. Connolly, )

Complainant, )

) Appeal No. 01976263

v. ) Agency No. 4B-010-1001-96

) Hearing No. 160-97-8055X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(N.E./N.Y. Metro Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) complaint of unlawful

employment discrimination in violation of � 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> Complainant

alleges that he was discriminated against on the basis of his mental

disability (schizophrenia, paranoid type) when his request for a change

of schedule for the period September 5, 1995, through December 25, 1995,

was denied.<2> The Commission accepts the appeal in accordance with

EEOC Order No. 960.001. For the following reasons, we affirm the FAD.

The record reveals that complainant, a Custodian at the agency's facility

in Springfield, Massachusetts, filed a formal EEO complaint with the

agency on November 2, 1995, alleging that the agency had discriminated

against him as referenced above. At the conclusion of the investigation,

complainant requested a hearing before an Equal Employment Opportunity

Commission Administrative Judge (AJ). Upon the agency's motion, the

AJ issued a Recommended Decision (RD) without a hearing, finding no

discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of disability discrimination. In reaching this conclusion, the AJ found

that: (1) there was no evidence establishing that complainant's impairment

limited his ability to perform the essential functions of his job; (2)

there was no evidence to establish that complainant's supervisor had

actual or constructive knowledge of complainant's specific disability

or that such knowledge entered into the decision to deny complainant's

request; (3) complainant did not establish a nexus between his disability

and the agency's denial of his request to change his schedule; and

(4) complainant was unable to prove that he was treated less favorably

than non-disabled employees who requested a similar change of schedule.

The AJ noted that complainant's request to change his schedule was not

for the purpose of accommodating his disability, but rather to facilitate

his pursuit of a college degree. The agency's FAD adopted the AJ's RD.

On appeal, complainant contends that the AJ erred when he determined

that complainant failed to establish a prima facie case of disability

discrimination. In support of this contention, complainant submits

Connolly v. United States Postal Service, EEOC Appeal No. 01891352

(January 12, 1990), in which the Commission found that complainant was a

"qualified individual with a disability." The agency requests that we

affirm its final decision.

Upon review, we agree with the AJ's conclusion that complainant was

unable to establish a prima facie case of disability discrimination.

Even assuming arguendo that complainant's supervisor regarded complainant

as a "qualified individual with a disability," we note that complainant

was not denied a reasonable accommodation relative to his disability.

See Simmons v. United States Postal Service, EEOC. Appeal No. 01955086

(December 18, 1997). Furthermore, we note that complainant presented

no evidence that the agency's action was motivated by discriminatory

animus towards his disability in so far as a non-disabled, maintenance

employee, under the same supervision as complainant, was also denied a

schedule change to attend school.

The Commission finds that the AJ's RD summarized the relevant facts

and referenced the appropriate regulations, policies, and laws.

In conclusion, we discern no basis to disturb the AJ's findings of

no discrimination. Therefore, after a careful review of the record,

including complainant's contention on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we affirm the FAD.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 3, 2000

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

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.

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.