01A11080
05-16-2002
Richard A. Keeter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Richard A. Keeter v. United States Postal Service
01A11080
May 16, 2002
.
Richard A. Keeter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A11080
Agency No. 4A-088-0129-99
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted for
the Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
in a permanent rehabilitation position as a Part-Time Flexible Modified
Distribution Clerk at the agency's Freehold, New Jersey facility.
Among complainant's several work-related medical restrictions, he was
limited to working only four hours per day. Complainant sought EEO
counseling and subsequently filed a formal complaint on June 4, 1999,
alleging that he was discriminated against on the basis of disability
(spinal cord injury) when on April 19, 1999, he learned that two employees
with less seniority than he were converted to full-time regular positions.
Complainant contends that because of his seniority, he should have
been converted from �part-time flexible� to �full-time regular� status.
In contrast to full-time regular employees, part-time flexible employees
are paid on an hourly basis, do not have paid holidays, may be required by
collective bargaining agreements (along with other non-career employees)
to work holidays, and accrue a portion of their annual leave each pay
period rather than receiving it in advance at the beginning of each year.
Moreover, their seniority rights are affected with respect to bidding
on vacant positions.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision, finding no
discrimination.
On appeal, complainant raises a new claim, arguing that the agency denied
him reasonable accommodation when it reassigned him from the carrier
craft to the clerk craft. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical and
mental limitations of a qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship.
29 C.F.R. �� 1630.2(o) and (p). Upon review, we decline to determine
whether complainant is being denied reasonable accommodation as a result
of his reassignment from the carrier craft to the clerk craft since
complainant failed to raise this claim during the investigative process.
Complainant should contact an EEO Counselor if he wishes to pursue a
denial of reasonable accommodation claim concerning his reassignment from
the carrier craft to the clerk craft.<2> See Halperin v. Department of
the Treasury, EEOC Appeal No. 01A05416 (August 30, 2001) (citing Harmon
v. Office of Personnel Management, EEOC Request No. 05980365 (November 4,
1999) and Mitchell v. Department of Commerce, EEOC Appeal No. 01934120
(March 4, 1994) (finding that a violation recurs each day that the
agency fails to provide accommodation). The Commission will now review
complainant's claim concerning the agency's failure to convert him from
�part-time flexible� to �full-time regular� status.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding the
adverse action give rise to an inference of discrimination. Lawson v. CSX
Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Assuming arguendo that complainant is a �qualified individual with
a disability,� the Commission finds that the agency's failure to
convert complainant to �full-time regular� status did not give rise
to an inference of discrimination because in order to be converted to
�full-time regular� status, an employee had to be able to work at least
eight hours per day. Complainant does not contend that he was able
to work eight hours per day, and the record establishes that the two
employees who were converted to �full-time regular� status were able
to work eight hours per day. Accordingly, we find that complainant has
failed to establish a prima facie case of disability discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
May 16, 2002
__________________
Date
1 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.
2 When a carrier is injured on the job, he or she is given modified duties
which may include tasks normally within the clerk craft. When a carrier's
injuries are determined to be permanent and the carrier has reached
Maximum Medical Improvement (�MMI�), he or she is placed into the clerk
craft if assigned to perform clerk craft duties. In the 1994 national
arbitration decision issued by Professor Carlton J. Snow in a grievance
brought by the American Postal Workers Union (�Snow Award�), it was held
that when carriers with a disability are assigned to the clerk craft,
they must be assigned as beginning part-time flexible clerks rather than
as full-time regular clerks, so as to avoid a hardship on part-time
flexible clerks who were working toward becoming full-time clerks.
In 1998, in a grievance brought by the National Association of Letter
Carriers, Professor Snow clarified his 1994 decision to indicate that it
only applied to letter carriers returning to work and not to then-working
letter carriers being reassigned to the clerk craft. We note that the
Snow Award did not require carriers to be assigned to the clerk craft.
Rather, it set forth the agency's obligations concerning seniority once
such an assignment was made. It is for these reasons we find no merit to
the agency's characterization of complainant's new claim as a collateral
attack on the Snow Award.