01a52081
04-21-2006
Robert W. Olsen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert W. Olsen v. United States Postal Service
01A52081
April 21, 2006
.
Robert W. Olsen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52081
Agency No. 1A-118-0021-02
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.
The record reveals that during the relevant time, complainant was employed
as a Mailhandler at the agency's Mid-Island Processing and Distribution
Center, Melville, New York facility. Complainant sought EEO counseling
and subsequently filed a formal complaint dated November 14, 2002,
alleging that he was discriminated against on the bases of disability
and reprisal for prior EEO activity when:
Since April 26, 2002, in connection with a light duty accommodation,
complainant has been sent home on numerous occasions because of no work
being available.
Initially, the agency dismissed complainant's complaint pursuant to
29 C.F.R. � 614.107(a)(7) for failure to cooperate. In EEOC Appeal
No. 01A34908 (April 23, 2004), the Commission reversed the agency's
procedural dismissal and reinstated the complaint for further processing.
At the conclusion of the investigation of the complaint, 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.
On December 9, 2004, the agency issued a final decision on the merits
of complainant's complaint. In its final decision, the agency noted
complainant clarified the �numerous occasions� he was sent home by citing
specific dates to include April 26, 2002, April 29, 2002, May 14, 2002,
May 20, 2002, July 14, 2002, July 29, 2002, August 5, 2002, August 6,
2002, August 12, 2002, August 13, 2002, August 20, 2002, and August
23, 2002, through July 4, 2004. The agency explains, however, that
complainant was absent without official leave beginning on August 24,
2002, and removed from the agency effective January 22, 2003. Thus,
the agency stated that the period from August 24, 2002, and thereafter
was not related to the denial of light duty work.
In its final decision, the agency concluded that complainant failed to
establish a prima facie case of retaliation discrimination. Specifically,
the agency noted that complainant's initial contact with the EEO Office
occurred on June 10, 2002. The agency noted that the denial of light
work began prior to complainant's initial contact with the EEO Office.
Thus, the agency found complainant failed to establish a nexus between
the prior EEO activity and the alleged discriminatory action.
The agency also found complainant failed to establish that he is disabled.
The agency stated that the record only indicates complainant's medical
limitations, such as no lifting over five pounds, no pushing or pulling,
and the limitations of two hours per day of walking and standing. Thus,
the agency found no evidence that complainant is limited in any major
life activities.
Further, the agency articulated non-discriminatory reasons for its
actions. Specifically, the agency noted that Supervisors A, B, and C
all stated that on the days complainant was sent home, there was no work
available for him within his medical restrictions. The agency stated
that complainant failed to submit any evidence to prove that light duty
work within his medical limitations existed on the dates in question.
Finally, the agency noted that when faced with a lack of available light
duty work for complainant, it attempted to accommodate him by reassigning
him to Tour 3. The agency noted that complainant responded by ceasing
to come to work.
Complainant filed a timely appeal with the Commission on January 10, 2005.
We note that complainant mailed a brief in support of his appeal to the
Commission on March 26, 2005, which is beyond the applicable limitations
period; therefore, his untimely brief will not be considered in this
appeal.
The agency requests that we affirm its final decision.
Upon review, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions: on the specified dates
there was no light duty assignments available within complainant's
medical limitations. Complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected classes. Specifically, the Commission concludes
that even assuming arguendo, complainant did establish prima facie cases
of discrimination on the alleged bases, the preponderant evidence does
not show that discrimination occurred. Complainant presents no evidence
that he was treated less favorably than individuals similarly situated.
Complainant has not shown that the agency offer to reassign him to
Tour 3 would not accommodate his claimed disability. Complainant does
not provide any evidence that the agency's actions were based on any
discriminatory bases.<1>
Therefore, the agency's final decision finding no discrimination is
AFFIRMED.
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
April 21, 2006
__________________
Date
1We do not address in this decision whether
complainant is an individual with a disability.