0520090675
10-23-2009
Mark Morris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Mark Morris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520090675
Appeal No. 0120081304
Hearing Nos. 410-2007-00235X and 410-2007-00307X
Agency Nos. 4H-300-0034-07 and 4H-300-0235-06
DENIAL
Complainant timely requested reconsideration of the decision in Mark
Morris v. United States Postal Service, EEOC Appeal No. 0120081304
(August 7, 2009). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
The record reveals that complainant is a mail carrier assigned to the
Marietta, Georgia area. In 2003, complainant injured his shoulder while
working, and from 2004 until October 6, 2006, complainant worked in a
limited duty assignment with carrier and clerk duties. In 2006, the
agency implemented a reorganization in the Marietta area that affected
over 20 employees who performed clerical duties. On October 6, 2006,
the agency offered complainant an assignment at the Atlanta Air Mail
Center, which complainant accepted on October 12, 2006.
Complainant filed a complaint in which he alleged that the agency
subjected him to discrimination on the basis of disability and in reprisal
for prior EEO activity in violation of Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq., when on October 6, 2006,
the agency assigned him to a different work location with different work
hours and off days.
Following an investigation of the complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On December 17, 2007,
the AJ issued a decision without a hearing in which he found that the
agency did not discriminate against complainant. On December 28, 2007,
the agency fully adopted the AJ's findings in a final order.
Complainant appealed the matter to the Commission, and on August 7,
2009, the Commission issued a decision in which it affirmed the final
agency order. Mark Morris v. United States Postal Service, EEOC Appeal
No. 0120081304 (August 7, 2009).
In requesting reconsideration, complainant maintains that our previous
decision erroneously determined that he was "not removed from the
carrier craft and could not perform positions in the carrier craft."
Complainant maintains that from 2004 until October 6, 2006, he was in the
carrier craft on limited duty performing "mostly carrier craft work."
Complainant further maintains that he was involuntarily transferred
into the clerk craft and relocated from the Mt. Bethel Post Office to
the Atlanta Air Mail Center, which resulted in the loss of his craft
seniority. Complainant asserts that there is a genuine issue of material
fact regarding whether limited duty work within the carrier craft existed
at the Bethel Post Office when he was involuntarily transferred to the
Air Port Mail Center.
After a careful review of the record, complainant's request for
reconsideration is denied. Although complainant contends our previous
decision erroneously stated that he was not removed from the carrier
craft, we note that the October 6, 2006 Modified Offer reassignment that
complainant signed on October 12, 2006 states that although complainant
would perform modified clerk duties in his new assignment, he remained
in the carrier craft. Further, complainant contends that limited duty
work was available in the carrier craft at the time of his transfer;
however, he failed to specify any positions or assignments within his
restrictions that he could have been reassigned to at Mt. Bethel during
the relevant time period. Complainant failed to provide any evidence to
support his bare assertions on these matters. We remind complainant that
on a decision without a hearing, the non-moving party's opposition must
consist of more than mere unsupported allegations or denials and must be
supported by competent evidence setting forth specific facts showing that
there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp. v. Catrett, 477 U.S. 317, 324, (1986). Complainant failed to show
that there was a genuine issue of material fact in this case, and his
arguments do not undermine the previous decision's determination that
he failed to provide any evidence from which a reasonable fact-finder
could find that the agency's legitimate, non-discriminatory reasons for
its actions were pretext for unlawful discrimination or reprisal.
Thus, after reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120081304 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____10/23/09______________
Date
2
0520090675
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090675