0120070442
02-04-2009
Wilson F. Ingram, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilson F. Ingram,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070442
Agency No. 4E-680-0071-05
Hearing No. 560-2006-00112X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 28, 2006, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. Complainant alleged that the agency discriminated against him
on the bases of race (African-American) and disability (hands and wrist)
when on June 15 and 17, 2005, he was forced to work overtime which was
outside of his medical restrictions.1
Following an investigation by the agency, complainant requested a
hearing before an Administrative Judge (AJ). He withdrew his request
however, and asked the agency to issue a final agency decision (FAD).
The FAD found that complainant had not been discriminated against.
Specifically, the FAD found that assuming arguendo that complainant
established a prima facie case of discrimination as to all bases, the
agency had articulated legitimate nondiscriminatory reasons for its
actions. The agency indicated that on June 15, 2005, complainant was
instructed by a supervisor to help a coworker deliver some of her mail.
Complainant argued with two supervisors regarding this request and
indicated that if he went back out he would incur overtime which was
contrary to his medical restrictions. The agency maintained that there
was no reason to believe that complainant would go into overtime after
he was instructed to help a coworker because according to the Workload
Status Report, complainant was projected to have returned to the Post
Office from his route one hour and eleven minutes early. Complainant was
given thirty minutes of mail to deliver for the coworker.2 The agency
maintained that had complainant gone out when first instructed instead of
arguing the point, 25 minutes of overtime would not have been incurred.
The agency indicated that complainant was not authorized to work overtime
and should have been able to carry the mail within his regular schedule.
The FAD also maintained that there were no other carriers who were
available to carry the mail and that all available overtime carriers
were already working overtime.
With respect to June 17, 2005, the FAD found that complainant was not
assigned overtime. The record reflected that complainant worked 7.79
hours and took .21 hours of annual leave. The FAD found that complainant
failed to show that the agency's reasons were pretext for prohibited
discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
We find that complainant has not provided any evidence, and the record
does not demonstrate that the decision to instruct him to assist a
coworker was based on his race or disability. While the record does show
that complainant ended up working 25 minutes of overtime on June 15,
2005, there is no evidence which indicates that the overtime was planned
by the agency or that the agency intended complainant to work outside
of his restrictions.
To the extent that complainant is alleging that the agency failed to
reasonably accommodate his disability, we find that once complainant
communicated to management that he would go into overtime if he delivered
all 30 minutes of additional mail, management told him to come back to
the station. As such, we find that the agency did provide a reasonable
accommodation to complainant as soon as he requested one.
Additionally, the record does not support complainant's contention that he
worked overtime on June 17, 2005. Therefore, the Commission finds that
complainant has not shown that the agency's legitimate nondiscriminatory
reasons were pretext for discrimination. Accordingly, we agree that
the preponderance of the evidence of record does not establish that
discrimination occurred. The agency's FAD is therefore affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 77960,
Washington, D.C. 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 4, 2009
__________________
Date
1 The record reveals that complainant's medical documentation from the
Orthopedic and Sports Medicine Center dated February 17, 2005, indicated
that complainant was experiencing right and left arm pain, and that he
should avoid overtime, bag routes and lifting greater than 20 pounds.
2 Complainant ended up not delivering the entire thirty minutes worth
of mail that he was assigned. Another carrier delivered the remaining
eight minutes of mail.
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0120070442
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070442