0120092251
09-25-2009
Kevin P. Clarke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kevin P. Clarke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092251
Agency No. 1E-502-0005-07
Hearing No. 443-2008-00017X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 24, 2009 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant, a Mail Handler at the agency's Des Moines Bulk Mail Center (BMC) in Urbandale, Iowa, alleged that the agency discriminated against him on the basis of disability (degenerative disk disease)1 when:
on or about May 2, 2007, he was denied a five-week detail opportunity at the Hawkeye District Office.
The record reflects that on or about April 14, 1994, complainant suffered a work related back injury. Complainant filed an on-the-job injury claim with the Office of Workers' Compensation Programs, which was accepted. Complainant was offered and accepted a limited duty job assignment in the Postal Service Inspection Service with clerical duties associated with the position of a narcotics analyst. During the relevant time, complainant's salary during his assignment to the Postal Inspection Service was charged to the BMC. On March 13, 2007, complainant was notified that due to the needs of the service at the BMC, his assignment to the Postal Inspection Service would be terminated effective March 30, 2007. The record reflects that complainant returned to the BMC on or about March 31, 2007. Upon his return, complainant was offered and accepted a rehabilitation job assignment to work the debris belt.
On June 4, 2008, a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ issued a decision on March 10, 2009, finding no discrimination. Therein, the AJ determined that complainant established a prima facie case of disability discrimination. The AJ found that complainant is a qualified individual with a disability because his back injury substantially limits the major life activities of lifting. The AJ found, however, that the agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
The Plant Manager (PM) testified that on May 1, 2007, she received an e-mail from the Post Office Operations Manager (POOM) asking if she could "borrow" complainant to fill in for her secretary for five weeks while she was on sick leave. PM stated that she denied complainant's five-week detail opportunity at the Hawkeye District Office based on operational needs. Specifically, PM stated that she informed the POOM that complainant was needed to work the debris belt at the BMC and that complainant could not be spared for the five week detail to the Hawkeye District Office. PM further stated "operational needs were our overtime was high. My goal was to reduce that overtime and also improve efficiency as we do that." PM stated that during the relevant time, the Postmaster General "had given . . . us a goal of reduction of 2 percent in overtime. What that meant to us and what we were aiming at in this district was to bring overtime down to 10 percent within the mail handlers craft." PM stated that complainant's disability was not a factor in her determination to deny his five-week detail opportunity.
With respect to complainant's argument that there was not a considerable amount of debris mail on hand and that the volume of debris mail had declined since the implementation of the high speed tray sorter, PM stated that she agreed with complainant's statement. PM stated, however, complainant was needed in operations in an effort to move the mail, thereby "increasing service, efficiency, and cutting the overtime on mailhandlers."
On appeal, complainant, through his attorney, argues that the AJ erred in finding no discrimination. Complainant states for example, that the AJ's finding that he failed to meet his burden to prove the agency's articulated, legitimate reasons for denying him the opportunity to work the five-week detail was false. Complainant argues that the AJ erroneously found that he "had not produced evidence which supports his assertion that the Agency was motivated by illegal discriminatory factors such as evidence that similarly situated individuals were treated more favorably." Finally, complainant requests to be returned to his prior position with the Postal Inspection Service, compensatory damages and attorney's fees and costs as a result of the alleged discriminatory action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
The Commission determines that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
September 25, 2009
__________________
Date
1 The record reflects that complainant initially claimed his disability as plantar fasciitis but later changed it to degenerative disk disease.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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