0120070250
03-13-2009
Loren P. Hoffmeier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Loren P. Hoffmeier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070250
Agency No. 1E-501-0005-06
DECISION
On September 25, 2006, complainant filed an appeal from the agency's
August 24, 2006 notice of final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Tour 3 Mail Handler at the agency's Des Moines Processing and
Distribution Center in Des Moines, Iowa. The record reveals that
complainant suffered an off duty injury in 1994, which left him a
paraparetic and in a wheel chair. On October 4, 2002, the Plant
Manager granted complainant's request for permanent light duty.
Since April 15, 2004, complainant's light duty assignment included
working on the patch-up table, facing mail, and other duties within his
medical restrictions. During the relevant time, complainant's medical
restrictions included lifting up to 40 pounds in the sitting position
on an intermittent basis and no standing, walking, climbing, kneeling,
pushing, or pulling.
Complainant filed an EEO complaint dated March 16, 2006, alleging that he
was discriminated against on the bases of disability (paraparetic/wheel
chair bound) when:
1. On December 22, 2005, complainant's work schedule was changed from
8:00 p.m. - 4:30 a.m. to 6:00 p.m. - 2:30 a.m.; and
2. On unspecified dates complainant was denied overtime.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
Specifically, with regard to his claim of disability discrimination,
the agency found complainant was disabled since both his testimony and
medical records revealed that he is permanently in a wheelchair without
the ability to stand, walk, climb, or kneel. However, the agency found
complainant was not qualified to perform the essential functions of his
mail handler job to include walking, standing, pushing or pulling.
With regard to issue 1, the agency articulated a legitimate,
non-discriminatory reason for its actions stating that complainant's
work schedule was changed for operational needs. Specifically, the
agency noted that complainant had been brought in to patch mail at 6:00
p.m. every day for the past six straight months prior to the change
at issue, resulting in two hours of overtime every day for complainant.
The agency noted that complainant was a light duty employee whose schedule
could be changed to 6:00 p.m. and that he had been working at that time
already. Moreover, the Manager, Distribution Operations (MDO) explained
that the opening unit starts up at around 4:00 p.m. or 4:30 p.m. and
begins to generate patch-up mail at around 6:00 p.m. The agency found
complainant did not submit any evidence that the agency's articulated
reasons for its actions were a pretext for discrimination.
With regard to issue 2, the agency noted that complainant claimed that
beginning on January 19, 2006, the MDO denied him overtime. The MDO
stated that when overtime is called in a section, the person chosen to
work overtime must be able to perform all the functions of that operation.
The MDO noted complainant was denied overtime when he could not perform
all the functions of the area in which overtime was called. Although
complainant had a note from his physician stating that he could work in
the flat sorter area, the MDO noted complainant could not do many of the
functions in the flat sorter area, such as pushing filled containers
to the staging area or retrieving the ergo cart or the tilter to tilt
the containers. The agency found complainant did not show the agency's
articulated reasons for its actions were a pretext for discrimination.
On appeal, complainant claims that the MDO is bypassing him for overtime
and is assigning the available overtime to less junior employees.
Complainant claims the MDO changed his schedule so overtime could be
reduced or eliminated. Complainant states he has been repeatedly passed
over for overtime work that was within his restrictions such as flat
preparation and patch up work. Complainant states that management is
violating the National Agreement when it passes over him in assigning
overtime and instead assigns the overtime work to employees who fall
after him on the overtime list.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Upon review, we find complainant failed to show that he was qualified to
perform the essential functions of his bid position as a mail handler.
Moreover, complainant did not establish that the permanent light duty
position he was performing was a vacant funded position or that there were
any other vacant funded positions which he could perform. Even if we were
to assume that complainant was a qualified individual with a disability,
we still find that the agency's legitimate, non-discriminatory reasons for
the schedule change in claim 1 was not shown to be pretext by complainant.
Further, we find complainant failed to show that the agency's denial of
overtime as described in issue 2 were based on complainant's protected
activity or complainant's purported disability.
Accordingly, the agency's final 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
March 13, 2009
__________________
Date
1 In his affidavit, complainant also alleged that since January 19,
2006, the agency denied him overtime following his redress meeting on the
present complaint. We shall treat claim 2, therefore, as the agency did,
as also being based on retaliation.
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0120070250
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120070250