Mark G. Zysk, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01980116 (E.E.O.C. Aug. 28, 2000)

01980116

08-28-2000

Mark G. Zysk, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mark G. Zysk v. U.S. Postal Service

01980116

August 28, 2000

.

Mark G. Zysk,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01980116

Agency No. 4J481104896

Hearing No. 230-97-4043X

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791 et seq. <1> For the reasons that

follow, the Commission AFFIRMS the agency's final decision.

ISSUE PRESENTED

The issue on appeal is whether complainant has proven that the agency

discriminated against him based on disability (physical) when it deducted

16 hours of his accrued annual leave for an on-the-job injury.

BACKGROUND

During the period in question, complainant was a City Carrier, PS-5,

at a Michigan facility of the agency. Believing he was a victim of

discrimination, complainant sought EEO counseling and, subsequently,

filed a complaint alleging that the agency discriminated against him

based on disability (physical) when, in December 1995, it deducted 16

hours from his accrued annual leave for medical appointments related to

an on-the-job injury<2>.

Complainant stated that the agency's action was discriminatory because

he was treated different than similarly situated coworkers outside

of his protected class when his benefit, i.e., his leave, was taken

away due to an on-the-job injury, specifically, an injury that was

accepted by the Department of Labor, Office of Workers' Compensation

Programs (OWCP) and approved for continuation of pay (COP benefits).

Complainant further stated that the agency's action violated 5 U.S.C. �

8103(a), which addresses medical services and initial medical and other

benefits for government employees.

The agency stated that complainant's accrued annual leave was decreased

in accordance with OWCP and agency policies. Specifically, the agency

stated that when an employee's on-the-job injury was accepted by OWCP,

he could have received COP benefits in one of two ways. The employee

could have used leave without pay (LWOP) with his agency and awaited COP

benefits from OWCP. Or, the employee could have used sick leave (SL)

and/or annual leave (AL) while awaiting COP benefits and then chose to

repurchase whichever leave he used once he received the COP benefits.

If an employee repurchased the SL or AL he used while awaiting his COP

benefits, the SL or AL was changed to LWOP for the pay period in which

it was used and the leave was reinstated. Under the SL/AL repurchase

method, an employee who accrued one pay period worth of LWOP (typically

80 hours) would incur a deduction to both SL and AL equal to the amount

of SL and AL the employee earned each pay period. The reason for the

deduction was because the employee was not entitled to the leave from

the beginning but received it only because of the initial use of SL

and/or AL. Employees could not earn SL or AL while on LWOP or while

receiving benefits from OWCP. The agency stated that the two ways of

receiving COP benefits generally yielded the same result; however, most

employees chose to use SL and/or AL while awaiting their COP benefits

because both types of leave were paid at 100% and allowed an employee

continuous wages. Whereas, where an employee opted to use LWOP while

awaiting COP benefits, he would have a break in wages and would receive

at a maximum 75% of his normal wages.

The record revealed that complainant opted for the SL/AL method, allegedly

unknowing of the effect on his accrued SL and AL.<3> Complainant incurred

a deduction of 16 hours of AL because he used 33.22 hours of SL in 1993

and 18.30 hours of SL in 1994 to cover the medical appointments related

to his on-the-job injury. In 1995, after complainant received his

COP benefits, he repurchased the 51.52 hours of SL he used in 1993 and

1994 causing him to go into LWOP status for the applicable pay periods.

Complainant had outstanding balances of LWOP for both 1993 and 1994 that

did not include the LWOP accrued from the leave repurchase. Once the

appropriate amount of LWOP from the repurchased SL was added to his

outstanding 1993 and 1994 LWOP balances, complainant had more than

80 hours of LWOP for each year. Therefore, the agency deducted eight

hours<4> of AL for the one pay period worth of LWOP complainant had in

each year.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision after a hearing,

finding no discrimination. The AJ concluded that complainant failed

to establish a prima facie case of discrimination based on disability.

Specifically, the AJ concluded that complainant's back injury was

temporary in nature and did not substantially limit a major life activity

and that the back injury did not establish that he had a record of an

impairment. The AJ relied on complainant's own testimony that he could

perform all of his job duties, including carrying the mail, and that he

was not substantially limited.

The agency issued a FAD concurring with the AJ's finding of no unlawful

employment discrimination based on disability. This appeal followed.

ANALYSIS AND FINDINGS

When a complainant relies on circumstantial evidence to prove an agency's

discriminatory intent or motive, there is a three step, burden-shifting

process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The initial burden is on the complainant to establish a prima facie case

of discrimination. Id. at 802. The burden then shifts to the agency to

articulate some legitimate, nondiscriminatory reason for its challenged

action. Id. If the agency is successful, the complainant must then

prove that the legitimate, nondiscriminatory reason articulated by the

agency is merely pretext for its discrimination. McDonnell Douglas,

411 U.S. at 804. This analysis is applicable to complainant's claim of

disability discrimination. Prewitt v. U.S. Postal Serv., 662 F.2d 292,

305 & n.19 (5th Cir. 1981).

The Rehabilitation Act prohibits discrimination against qualified

individuals with a disability. See 29 C.F.R. � 1614.203. In order to

establish disability discrimination, complainant must first show that:

(1) he is an individual with a disability, as defined by 29 C.F.R. �

1630.2(g)<5>; (2) he is a qualified individual with a disability

pursuant to 29 C.F. R. � 1630.2(m); and (3) he was subjected to an

adverse personnel action under circumstances giving rise to an inference

of disability discrimination. See Prewitt, supra.

Even if the Commission assumes arguendo that complainant is a person with

a disability, he failed to establish a prima facie case of disability

because the circumstances do not yield an inference of discrimination.

Complainant's AL was credited 16 hours in accordance with the OWCP and

agency policies contained in the record. Complainant failed to show

that the agency's reasons were pretextual. Based on the foregoing, the

Commission finds that complainant failed to establish that the agency

discriminated against him based on his disability.

CONCLUSION

After a careful review of the record, including complainant's contentions

on appeal, the agency's response, and argument and evidence not

specifically addressed in this decision, we AFFIRM the agency's finding

of no discrimination based on disability.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

August 28, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2On March 3, 1993, complainant slipped and fell while walking from an

agency parking lot to an agency building to begin his tour of duty.

He was diagnosed with lumbar and thoracic subluxation (lower back

strain).

3Complainant addressed the agency's deduction of his annual leave only.

4Complainant had fifteen years of Federal service so he received eight

hours of AL and four hours of SL per pay period.

5The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.