Allen P. Hudson, Petitioner,v.William J. Henderson, Postmaster General, United States Postal Service, (Headquarters), Agency.

Equal Employment Opportunity CommissionDec 29, 2000
03a00115 (E.E.O.C. Dec. 29, 2000)

03a00115

12-29-2000

Allen P. Hudson, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, (Headquarters), Agency.


Allen P. Hudson v. United States Postal Service

03A00115

December 29, 2000

.

Allen P. Hudson,

Petitioner,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Headquarters),

Agency.

Petition No. 03A00115

MSPB Nos. DC-0752-99-0448-I-2; DC-0752-00-0251-I-1

DECISION

On July 11, 2000, petitioner filed a timely petition with the Equal

Employment Opportunity Commission asking for review of a final

Initial Decision issued by the Merit Systems Protection Board (MSPB)

concerning his claim of 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, as amended, 29

U.S.C. � 791 et seq.<1> Petitioner, a PS-5 City Carrier at an agency

facility in Bethesda, Maryland, received a notice of proposed removal

based on a charge of failure to follow instructions and absence without

official leave. After petitioner appealed to the MSPB, the removal was

retroactively rescinded, and petitioner was given a new reply period.

Ultimately, the charges were sustained, but the proposed removal was

reduced to a thirty day suspension. On January 3, 2000, petitioner filed

a mixed case appeal with the MSPB. After a hearing, the Administrative

Judge sustained the charge of failure to follow instructions and concluded

that petitioner's suspension was within the limits of reasonableness and

was not motivated by discrimination on the bases of petitioner's race

(Black) or disabilities (back condition and stress).

EEOC Regulations provide that the Commission has jurisdiction over

mixed case appeals on which the MSPB has issued a decision that makes

determinations on allegations of discrimination. 29 C.F.R. � 1614.303

et seq.<2> The Commission must determine whether the decision of the

MSPB with respect to the allegation of discrimination constitutes an

incorrect interpretation of any applicable law, rule, regulation or policy

directive, or is not supported by the evidence in the record as a whole.

29 C.F.R. � 1614.305(c). Neither party submitted a statement in support

of or in response to the petition.

Petitioner contends that he was subject to racial discrimination when

a White employee, who needed assistance with his route, was provided

with a hand truck while petitioner was not. Testimony at the hearing

established that hand trucks were assigned to routes, not to employees,

and were always available to petitioner when his route assignment required

the use of one. The Administrative Judge concluded there was no merit

to petitioner's claim of racial discrimination, and we agree.

In regard to petitioner's claim of disability discrimination based on his

back condition, petitioner contends that the agency violated his medical

restrictions in requiring him to work overtime and to drive a jeep.

The Administrative Judge found that petitioner's restrictions did not

contemplate either overtime or driving, and that petitioner was able

to perform the duties of his position with reasonable accommodation.

Since the agency does not appear to have contested petitioner's status

as a qualified individual with a disability under the Rehabilitation

Act and since the Administrative Judge did not specifically address the

issue, we decline to do so here. The record supports the Administrative

Judge's finding that the agency provided a reasonable accommodation by

consistently proffering modified duties and only requiring petitioner

to perform assignments which comported with his medical restrictions.

The Administrative Judge further found that petitioner's stress was

not a disabling condition and that he never sought an accommodation

for it from the agency. The determination as to whether an individual

has an impairment which substantially limits a major life activity is

made on a case by case basis. Bragdon v. Abbott, 524 U.S. 624 (1998);

29 C.F.R. pt. 1630, App. � 1630.2(j). In the instant case, we agree with

the Administrative Judge that the fact that petitioner experienced stress

and depression when working for certain supervisors did not render him

substantially limited in the major life activity of working, and the

evidence does not establish that petitioner's stress condition was an

impairment which substantially limited any other major life activity.

Finally, the Administrative Judge found that there was no merit to

petitioner's claim that he was harassed on the basis of his disabilities.

The testimony at the hearing supports a finding that those accused of the

alleged harassment treated all of their employees alike, regardless of

whether they were disabled or not. Accordingly, we find that petitioner

failed to prove that he was subjected to a hostile work environment

based on his membership in a protected class. See Harris v. Forklift

Systems, Inc., 510 U.S. 17 (1993); EEOC Notice No. 915.002 (March 8,

1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.

The Commission finds that the MSPB's decision constitutes a correct

interpretation of the laws, rules, regulations, and policies governing

this matter and is supported by the evidence in the record as a whole.

For the foregoing reasons, it is the decision of the Commission to CONCUR

with the final decision of the MSPB finding no discrimination.

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

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,

based on the decision of the Merit Systems Protection Board, within

thirty (30) calendar days of 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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

December 29, 2000

__________________

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 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 29 C.F.R. Part 1614 where applicable, in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.