01972769
04-07-2000
Patrick Carrigg, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Area), Agency.
Patrick Carrigg v. United States Postal Service
01972769
April 7, 2000
Patrick Carrigg,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Area),
Agency.
Appeal No. 01972769
Agency No. 4-F-940-1195-95
Hearing No. 370-96-X2677
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his claims that the agency discriminated against him in
violation of 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, et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> Complainant asserts
that he was discriminated against on the bases of age (born November 7,
1940) physical disability (heart attack) and mental disability (stress)
when he was denied a request to change his work schedule while on
jury duty. The Commission hereby accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). For the reasons that follow, the FAD is AFFIRMED.
At the time of the alleged discriminatory event, complainant was employed
as a Letter Carrier at the agency's Los Altos Post Office in California.
Believing that he was the victim of discrimination, complainant
sought EEO counseling and, thereafter, filed a formal EEO complaint.
The agency accepted the complaint for investigation and complied with
all of our procedural and regulatory prerequisites. Subsequently,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). Upon informing the parties of her intention to issue a decision
without a hearing and permitting an appropriate opportunity for response,
the AJ issued a Recommended Decision (RD) finding no discrimination.
See 64 Fed. Reg 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614); 29 C.F.R. � 1614.109(e). Thereafter,
the agency adopted the RD and issued a FAD, dated January 16, 1997,
finding no discrimination. It is from this agency decision that
complainant now appeals. No contentions were submitted on appeal.
The investigative record reveals that complainant had suffered a heart
attack and underwent heart bypass surgery several years prior to the
alleged discriminatory event. On June 1, 1995, complainant was selected
to serve jury duty commencing on Monday, June 5, 1995. On Friday, June
2, 1995, complainant requested to switch his regular day off (Thursday,
June 8, 1995) with Saturday, June 3, 1995, in anticipation that he would
be serving jury duty during the coming week. Complainant's request was
denied. He was informed by his superiors that he failed to submit his
request far enough in advance and that granting the request would leave
the facility short staffed. Thereafter, complainant filed a grievance
concerning the denial of the request. Consequently, an agreement was
reached whereby complainant was paid "an additional straight time for
all hours he worked on June 3, 1995." Additionally, it was agreed that
from that time on carriers would be allowed to change their non-scheduled
days to conform with any court days.
The AJ accepted for the purpose of her decision that complainant
established a prima facie case of age and disability discrimination.
Nevertheless, the AJ concluded that complainant failed to rebut the
agency's articulated legitimate, nondiscriminatory reasons for its
actions. In this regard, the AJ reasoned that complainant failed to
present any evidence of discriminatory animus on the part of the agency
or that the agency's staffing concerns were pretextual. Moreover, the
AJ concluded that the issue was moot because the grievance agreement
had resolved complainant's concerns. That is, the agreement eradicated
the effects of the alleged discrimination and ensured that the alleged
violation would not recur.
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's RD presented the relevant facts, and properly analyzed the
appropriate regulations, policies and laws. The Commission discerns no
basis to disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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. We further note that the 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.