01974847
01-15-1999
Roy E. Vickers, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Roy E. Vickers v. United States Postal Service
01974847
January 15, 1999
Roy E. Vickers, ) Appeal No. 01974847
Appellant, ) Agency No. 1H-391-1014-95
v. ) Hearing No. 130-95-8098X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621
et seq. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. See EEOC Order No. 960.001. In his complaint,
appellant alleged that he was discriminated against based on his race
(White), age (65) and physical disability (arthritis) when his position
was abolished, which resulted in his reassignment.
Appellant was employed as a Manual Clerk (Distribution) when he and five
other employees assigned to the same location received notification that
their bid positions were being abolished. Two of the other employees were
Black, one was under 40 years old and three had no physical restrictions.
Because none of these employees elected to bid on other positions,
they were all reassigned by the agency. Appellant was reassigned to an
automation position for one month, but he was then reassigned back to a
manual position. Appellant maintained that he was reassigned back to a
manual position because he was unable to perform the essential functions
of the automation position at the required speed.
Appellant timely sought EEO counseling and filed his instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
appellant timely requested a hearing before an EEOC Administrative Judge
("AJ"). After a hearing, the AJ issued a recommended decision ("RD")
finding no discrimination. The agency adopted the RD in its FAD.
Appellant timely appeals, but does not offer any argument.
In the RD, the AJ found that appellant was an individual with a disability
as defined by the Commission's Regulations. However, the AJ found that
appellant could not establish a prima facie case of disparate treatment
discrimination on the bases of race, age or disability, in that the
agency abolished the positions of all similarly situated persons and
reassigned all of such persons after they failed to submit bids on other
positions. While appellant contended that the positions held by he
and his coworkers were targeted because they were near retirement age,
the AJ found that this argument was unsupported by the record, as only
one of them appeared to be of retirement age. Insofar as appellant
contended that his reassignment to the automation position failed to
provide reasonable accommodation for his disability, the AJ noted that
in May 1994, appellant had submitted one note from his physician, which
speculated that an assignment to automation position would not accommodate
appellant's arthritis. However, that note did not comply with agency
contractual procedures and no additional information was provided by
appellant prior to his reassignment in October 1994. Then, as previously
noted, appellant was reassigned to a manual position after one month.
(Appellant does not contend that he is unable to perform the essential
duties of the manual position, but dislikes the hours set for his tour.)
Accordingly, the AJ found no discrimination.
After a thorough review of the record, the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission notes that it generally
will not disturb the credibility determination of an AJ where, as here,
such determinations are based on the demeanor of the witnesses. Esquer
v. United States Postal Service, EEOC Request No. 05960096 (September 6,
1996); Willis v. Department of the Treasury, EEOC Request No. 05900589
(July 26, 1990). Accordingly, the Commission discerns no basis to disturb
the AJ's finding that appellant failed to establish discrimination.
Therefore, it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations