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.
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2
0120072107
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013