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.