Kurt T. Klassen, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 23, 2009
0120072107 (E.E.O.C. Jan. 23, 2009)

0120072107

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. 0120072107

Agency No. 4F-926-0163-06

DECISION

Complainant appeals to the Commission from the agency's decision dated

February 22, 2007, finding no discrimination. In his complaint, dated

July 3, 2006, complainant, a Letter Carrier Technician at the Santa

Ana Post Office - Spurgeon Station, Santa Ana, California, alleged

discrimination based on disability (left arm, major depression) and in

reprisal for prior EEO activity when on May 5, 2006, he requested 0.05

hours of sick leave for April 25, 2006, April 29, 2006, May 13, 2006,

May 27, 2006, June 10, 2006, and June 24, 2006, but was charged with

80 hours of LWOP for Pay Period (PP) 9-10, 79.60 for PP 11 and PP 12

and on-going. The record indicates that complainant was on leave since

the end of March 2003.

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 action, 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 incident. Specifically, complainant's Acting

Supervisor stated that he approved the alleged sick leave requests at

the time they were submitted to him and he gave them to his supervisor.

The Acting Supervisor indicated that at the relevant time, he was in

the middle of route inspections and his unit was working 10 to 14 hours

a day. As a result of his busy schedule, he was not thinking much about

complainant, did not ensure that his requested leave was entered in the

system correctly, and did not follow up with his supervisor. The Acting

Supervisor admitted that he was responsible for charging complainant

with the LWOP at issue but states it was an unintentional mistake.

He further stated that as soon as the union steward brought this error to

his attention, he, immediately, went to the TACS Pay Adjustment manager

in person and had him make the corrections. The record indicates that

the Acting Supervisor also sent complainant a letter, dated July 14,

2006, apologizing for this error and attempting to correct the same.

We note the record contains the signed and corrected TACS AdjustPay

Adjustment Certification charging complainant .05 hours of sick leave

during the relevant pay periods at issue.

The Commission does not address in this decision whether complainant

is a qualified individual with a disability. Furthermore, we note

that complainant has not claimed that he was denied a reasonable

accommodation.1 Although the Acting Supervisor clearly made a mistake

charging complainant with the alleged LWOP, we do not find his action

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 To the extent that complainant might be alleging that he was denied

a reasonable accommodation, we find that his requests for sick leave

and re-enrollment in FEHB do not constitute a reasonable accommodation

under the regulations since they do not concern the essential functions

of his work performance.

??

??

??

??

2

0120072107

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013