0120080470
01-23-2009
Kurt T. Klassen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kurt T. Klassen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080470
Agency No. 4F-926-0075-07
DECISION
Complainant appeals to the Commission from the agency's decision
dated November 7, 2007, finding no discrimination. In his complaint,
dated January 27, 2007, which was later amended, complainant alleged
discrimination based on disability (left arm, depression) and in reprisal
for prior EEO activity when:
(1) On November 17, 20061, his request for 0.01 hour of sick leave for
pay period 23, 2006, to pay period 01, 2007, was denied or refused;
(2) On January 13, 2007, he became aware that he was charged Absent
Without Official Leave (AWOL) when he requested sick leave and Leave
Without Pay (LWOP);
(3) On January 12, 20072, he became aware that he was denied and/or
refused a request for a pay adjustment;
(4) On December 18, 2006, management failed to properly respond to his
request for reasonable accommodation; and
(5) On January 30, 2007, management failed to properly respond to and/or
deny his request for District Reasonable Accommodation Committee (DRAC)
records.
After completion of the investigation of the complaint, complainant
requested a hearing but later withdrew the request. The agency
then issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination,
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. With regard to claims (1) and (2),
the Acting Manager Post Office Operations (Manager) stated that since
he was on detail and annual leave and in training during the relevant
time period, he was unaware of the sick leave request at issue.
Complainant's supervisor stated that complainant was charged with
the alleged AWOL since he did not receive the sick leave request.
The supervisor indicated that he subsequently granted the alleged sick
leave request upon his receipt of such request on November 28, 2006.
The supervisor noted that he had been in the Spurgeon Station since 2005,
but explained that neither he nor the Manager had ever met or talked to
complainant since he was on leave since March 2003.
With regard to claim (3), the Manager stated that he was not aware
of the alleged incident. The supervisor stated that he never denied
complainant's pay adjustment during the relevant time period at issue.
The agency stated that there was no record of an official request for
a pay adjustment for the relevant time period. Further, the agency
noted that there was no evidence a pay adjustment was needed since the
supervisor admitted that once he received complainant's 3971 request, he
went back and granted complainant's request for .01 hours of sick leave
(as described in claim (1) above).
With regard to claims (4) and (5), the agency stated that during the
relevant time period, management and the DRAC engaged in the interactive
process with complainant concerning his reasonable accommodation request.3
Specifically, the agency indicated that upon the supervisor's nomination,
the DRAC requested complainant provide medical documentation outlining
his current diagnosis, treatment plan, restrictions, an assessment of
the permanency of his conditions, and an assessment of how his condition
impacted his major life activities. Complainant failed to provide the
requested information. The record contains complainant's doctor's letter
dated August 1, 2006, wherein the doctor indicated that complainant "will
be unable to attend work-related responsibilities prior to 10/30/06"
due to his depression. In a letter dated January 23, 2007, the doctor
stated that complainant "is unable to attend work-related responsibilities
prior to 5/1/07" due his depression. The Diversity Development Specialist
(Specialist), DRAC, stated that the foregoing medical documentations were
deficient because they did not contain any medical restrictions, address
complainant's ability to perform the essential functions of his position,
or indicate whether his conditions were temporary or permanent.
The record reveals that on January 30, 2007, complainant requested copies
of the Rehabilitation Act, U.S. Postal regulations, the national agreement
between the agency and the National Association of Letter Carriers
(NALC), and/or 29 C.F.R. � 1614. Further, complainant requested a copy
of the information in his DRAC file, information about the DRAC members
and information surrounding the purpose of the DRAC in contacting him
and requesting medical information. The Specialist indicated that
she never failed to respond to complainant's request as he alleged.
The record contains a March 2, 2007 letter providing complainant
specific information on the DRAC committee, the reasonable accommodation
interactive process, and explaining that medical information may be
requested by an agency when the need for a reasonable accommodation is
not obvious. Further, complainant was informed who to contact to obtain
copies of the NALC agreement and copies of his EEO files. The letter
noted that the existing information in complainant's DRAC file included
his letter requesting accommodation, a DRAC nomination form and the
medical information complainant submitted to DRAC dated 1/30/07, which
the letter states is enclosed. The March 2, 2007 letter also invited
complainant to participate in the interactive process and informing
him that he had seven days to respond if he wanted to continue with
the process. Complainant did not respond to the March 2, 2007 letter.
The agency stated that no final decision was made since complainant
failed to fully participate in the interactive process.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that
he was denied a reasonable accommodation or that any agency actions were
motivated by discrimination. Complainant did not adequately engage in the
interactive process necessary for a reasonable accommodation. Complainant
has not shown that he was able to perform the essential functions of
his position with or without a reasonable accommodation. Furthermore,
complainant has not shown, and the record does not indicate, that
there was any vacant funded position that met his medical restrictions.
Moreover, we note that his requests for corrected sick leave and to have
his health benefits reinstated do not constitute reasonable accommodation
requests under the regulations since they do not concern the essential
functions of his work performance. Furthermore, complainant has not in
any way shown that he was made to work beyond his medical limitations.
It appears that management might have been negligent in not properly
processing the alleged sick leave request; however, we do not find the
agency's actions were motivated by discrimination.
Accordingly, the agency's decision finding no discrimination 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
1/23/09
__________________
Date
1 In its decision, the agency made a typographical error by indicating
it as 2005, instead of 2006.
2 In its decision, the agency made a typographical error by indicating
it as 2006, instead of 2007.
3 It appears that in 2002, the DRAC engaged in the interactive process
with complainant concerning his request for a reasonable accommodation
due to his left arm conditions.
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0120080470
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013