Bruce A. Nelson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 19, 2000
01980146 (E.E.O.C. Dec. 19, 2000)

01980146

12-19-2000

Bruce A. Nelson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Bruce A. Nelson v. United States Postal Service

01980146

December 19, 2000

.

Bruce A. Nelson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 01980146

Agency No. 1F-937-1051-95

Hearing No. 370-96-X2193

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

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.; the

Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal

is accepted pursuant to 29 C.F.R. � 1614.405.<2> Complainant alleges he

was discriminated against on the bases of race (White), color (white), sex

(male), national origin (German/Spanish/American), religion (unspecified),

disability (shoulder injury), age (DOB: 12/1/49), and in reprisal for

prior protected activity<3> when he was given a limited duty job offer

that had been approved by his physician without his prior knowledge.

For the following reasons, the Commission affirms the agency's final

decision.

The record reveals that complainant, a Self Service Postal Center

Technician working at the Main Office Station in Fresno, California,

filed a formal EEO complaint on March 30, 1995, alleging that the agency

had discriminated against him as referenced above. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge.

The Administrative Judge issued a decision without a hearing, finding no

discrimination. The agency's final decision adopted the Administrative

Judge's decision. Complainant did not submit a statement in support of

his appeal. The agency requests that we affirm its final decision.

The Commission applies a de novo standard of review to factual

findings by an Administrative Judge when no hearing was held and to

all conclusions of law whether or not a hearing was held. 29 C.F.R. �

1614.405(a). Assuming without determining that complainant is a qualified

individual with a disability within the meaning of the Rehabilitation

Act, after a careful review of the record, the Commission finds that

the Administrative Judge's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We find that complainant set forth a claim of disparate treatment, and

we agree with the Administrative Judge that complainant did not show

he was aggrieved by the agency's action and thus failed to establish

a prima facie case of discrimination on any of his alleged bases.

We discern no basis to disturb the Administrative Judge's finding of

no discrimination. Therefore, after a careful review of the record,

including arguments and evidence not specifically addressed in this

decision, we affirm the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 19, 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 in deciding the

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

Commission's website at www.eeoc.gov.

3 The record indicates that complainant's prior protected activity was

raised under all three of the above referenced statutes.