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.