01970250
07-19-2000
John J. Connolly v. United States Postal Service
01970250
July 19, 2000
John J. Connolly, )
Complainant, )
)
) Appeal No. 01970250
) Agency No. 4B-010-1088-94
William J. Henderson, ) 4B-1034-95
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq, and �501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq.. Accordingly, the appeal is accepted in accordance
with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).<1>
Complainant, a custodial worker at an agency processing plant, worked
from 5:30 am to 1:30 pm. Complainant twice requested and was denied
changes in his schedule to attend college classes and filed formal
complaints on November 11, 1994 and March 27, 1995, after each denial
alleging discrimination on the basis of mental disability (schizophrenia,
paranoia) .<2>
The Maintenance Manager denied complainant's request based on the what
he believed were the best interests of the agency and his belief that
the denial did not prohibit class attendance because complainant was
attending night school.
The Administrative Judge (AJ) issued Consolidated Findings and
Conclusions, finding that there were no genuine issues of material fact
to be heard. After reviewing the record, the AJ found that none of the
officials involved were aware that complainant suffered a disability,
that the accommodation demanded, a change in work schedule, was not
in any manner connected with complainant's work at the agency as a
custodian, and that the complainant failed to establish that the agency
discriminated against him when he was denied changes in work schedule
to attend classes.
The agency accepted the AJ's conclusions as it final agency decision
and closed the case with a finding of no discrimination.
On appeal, complainant claims a letter he submitted to the AJ dated
November 27, 1995, established that the facts were in dispute in that the
agency was aware of his disability. The letter states that complainant
filed an EEO compliant alleging discrimination based on his disability in
1985, that complainant wrote on his request for change of schedule that
he was attending college under the Veterans Vocational Rehabilitation
Act, and that it was common knowledge in the agency that the custodial
staff are mostly disabled veterans. Complainant also notes that he is
aware that another employee assigned to the same facility as complainant
was granted a change of schedule to attend college classes for the same
semester.
For the purposes of this decision, the Commission will assume that
complainant is a qualified individual with a disability. However, the
Commission is not convinced that the responsible agency officials were
aware of complainant's disability. The record also reflects that the
agency's reasons for its denial of the request for change of schedule
were not a pretext to mask discrimination.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
July 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Complainant's requests for change of schedule were approved from January
1993, through September 1994. In January 1995, complainant was denied
a change of schedule.