04a40019
02-10-2005
Robert P. DesRoches, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert P. DesRoches v. United States Postal Service
04A40019
02-10-05
.
Robert P. DesRoches,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04A40019
Request No. 05980836
Appeal No. 01960204
DECISION ON PETITION FOR ENFORCEMENT
Robert P. DesRoches (petitioner) has petitioned the Commission to review
compliance with its decision in Robert P. DesRoches v. United States
Postal Service, EEOC Request No. 05980836 (July 19, 2000), affirming,
EEOC Appeal No. 01960204 (May 12, 1998). In its Order, the Commission
directed the United States Postal Service (agency) to redress petitioner
following a finding that agency officials discriminated against him
on the basis of disability (herniated disc, lumbar radiculopathy, heel
spurs) in violation of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �� 791, 794(c). This petition for enforcement is governed by
the Commission's regulations. 29 C.F.R. � 1614.503. The agency and
the petitioner have submitted legal memoranda.
Following an on-the-job injury in 1991, petitioner held a limited duty
position as a modified part-time flexible (PTF) clerk. The underlying
complaint at issue arose from the agency's placement of a junior PTF
clerk into a vacant full-time clerk position in April 1994, instead of
petitioner.<1> The Commission's previous decisions affirmed the finding
of the Administrative Judge (AJ) that the agency discriminated against
petitioner and ordered, inter alia, the following relief:
(A) award [petitioner] a full-time regular distribution clerk, PS-05,
position retroactive to April 30, 1994 [corrected]<2>...; and
(B) back pay, interest, and other benefits due [petitioner]....
In addition, the Commission directed the agency to provide training
to responsible managers, to post a non-discrimination notice, to pay
reasonable attorney's fees, and to report to the Compliance Officer. These
provisions have not been identified by petitioner.
In early January 1994, however, petitioner ceased coming to work.<3>
After receipt of an updated report from his physician, the agency issued
him a notice of proposed removal in April 1995, to be effective June 10,
1995, for inability to perform the duties of his position. Petitioner
appealed to the Merit Systems Protection Board, which sustained the
removal action and rejected his claim of disability discrimination
Petitioner sought review by the Commission, and the Commission concurred
with the MSPB, finding that petitioner was not a qualified individual with
a disability. See MSPB No. BN0752960118I1 and EEOC Petition No. 03970058
(May 13, 1997).
The agency has submitted documentation demonstrating that petitioner
was assigned to a full-time regular distribution clerk position prior
to April 30, 1994. Based on its representation, we find that the agency
has complied with Paragraph A of our Order. With regard to Paragraph B
regarding back pay and benefits, we find that petitioner is not entitled
to back pay and benefits. Because petitioner ceased coming to work as
of January 7, 1994, prior to the date of the discriminatory event, i.e.,
April 30, 1994, and his removal was upheld on appeal to the MSPB and EEOC,
his entitlement to back pay relief had ended.<4> We find therefore,
that the agency has complied with Paragraph B of our Order. Further,
petitioner, having been removed, is not entitled to reinstatement.
CONCLUSION
For the reasons stated, we find that the agency has complied with all
provisions in our Order. Petitioner's petition for enforcement is denied.
STATEMENT OF PETITIONER'S RIGHTS - ON PETITION FOR ENFORCEMENT
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
___02-10-05_______
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
___________
Date
______________________
1A PTF employee is an employee with no fixed work schedule, while
a full-time regular employee has a career appointment and a regular
schedule of five 8-hour days per week.
2We correct a typographical error from our previous decisions.
A petitioner is entitled to back pay from the date of the violation,
in this case, April 30, 1994.
3The agency denied petitioner's request to use sick leave for adverse
road conditions and bad weather. Petitioner filed a complaint, and the
agency's decision, finding no discrimination, was upheld on appeal.
EEOC Appeal No. 01954414 (November 15, 1996), aff'd, EEOC Request
No. 05970298 (May 13, 1997).
4We note, in addition, that petitioner's attempt to claim accrued sick
leave for the period after January 7, 1994, through his removal was
denied by the agency. The agency's decision was affirmed on appeal.
EEOC Appeal No. 01A02902 (August 7, 2002).