01A11834
08-22-2002
Harry L. Welch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Harry L. Welch v. United States Postal Service
01A11834
August 22, 2002
.
Harry L. Welch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A11834
Agency No. 4-H-335-0083-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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> and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted 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
as a window clerk at the agency's Winter Haven, Florida, Post Office. On
October 1, 1999, complainant was informed by the agency that his position
as a part-time regular clerk at the Winter Haven facility was being
�excessed.� The record demonstrates that four other persons/positions
were similarly �excessed� due to the loss of machinery at the facility.
All five people were afforded the opportunity to choose a new assignment.
The other four individuals were given the assignment of letter carrier,
however complainant was not, due to his medical restrictions. Effective
November 6, 1999, complainant was reassigned to the position of part-time
regular clerk at the agency's Lakeland Processing and Distribution Center.
Complainant thereafter sought EEO counseling and subsequently
filed a formal complaint on February 1, 2000, alleging that he was
discriminated against on the bases of disability (hip replacement),
age (D.O.B. 12/20/49), and reprisal for prior EEO activity when he was
�excessed� from his position. 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.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination on any basis. The agency determined
that complainant was not disparately treated because of his age,
disability, or in reprisal for prior protected activity when his position
was excessed, as other individuals not in his protected classes were also
excessed. Further, the agency found that it articulated a legitimate,
non-discriminatory reason for such action. Specifically, the agency
stated that the positions were excessed because it lost �CSBCS� machines,
and there was therefore not a position available in the Winter Haven
facility for complainant.
On appeal, complainant's contentions are not entirely clear. Complainant
seems to be arguing both that his being excessed was motivated by
discriminatory animus and that his being excessed violated union and
Department of Labor (DOL) regulations. Further, complainant vaguely
avers that the reassignment to the Lakeland facility conflicts with his
medical restrictions, and that he is therefore being denied a reasonable
accommodation. The agency requests that we affirm its FAD.
As an initial matter, we will address complainant's appeal arguments.
First, to the extent complainant is arguing that his being excessed
violated DOL or union regulations, he should contact those specific
entities for redress of his issues, as they do not fall under the purview
of this Commission. Second, to the extent that complainant believes
he is entitled to a reasonable accommodation and is not receiving one,
or that the reassignment to the Lakeland facility exceeds his medical
restrictions, we direct him to contact an EEO counselor.
Regarding complainant's claim of disparate treatment, the Commission
concurs with the agency's determination that complainant failed to
establish a prima facie case of discrimination. Specifically, we find
that complainant did not identify any similarly situated individuals,
who were not members of his protected classes, who were treated more
favorably.<2> The Commission further finds that complainant failed to
present evidence that, more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that complainant offers no evidence that
other employees at the facility who also had their job affected by
the loss of the CSBCS machines, were nonetheless allowed to remain in
their same positions. 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 FAD.
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
August 22, 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 We are assuming, for the purposes of analysis, that complainant is a
qualified individual with a disability as defined by the Rehabilitation
Act.