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retroactively rescinded, and petitioner was given a new reply period.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