01a01998
03-28-2001
Gregory B. Lewis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Gregory B. Lewis v. U.S. Postal Service
01A01998 & 01985672
March 29, 2001
.
Gregory B. Lewis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal Nos. 01A01998; 01985672
Agency No. 4-G-770-0550-98
DECISION
The complainant filed a timely appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Pursuant to
29 C.F.R. � 1614.405, the Commission accepts the complainant's appeal.
The complainant also filed a separate appeal (01985672) from the
dismissal of a claim contained in the complaint.<1> The two appeals are
hereby consolidated under 29 C.F.R. � 1614.606. The complainant alleges
discrimination on the basis of disability (right ankle, shoulder, lungs
and stress) when he was required to violate his medical restrictions
by performing a collection run. The agency dismissed the complainant's
claim that his supervisor asked if his medical documentation was for a
mental disability for failure to state a claim.
Background
The complainant alleged that on April 27, 1998, his supervisor asked
him to perform a collection run which he believed violated his medical
restrictions. The agency determined that the complainant was on limited
duty on the day in question and that he was restricted from reaching
above his shoulders, kneeling, lifting over 8 pounds, driving, bending,
pushing/pulling and climbing. The agency also included documentation that
the complainant had asked for 1 hour of overtime to �clean-up and carry
route 30". The complainant's request was approved. In the agency's final
decision, it found that the supervisor denied requesting the complainant
to perform tasks that violated his medical restrictions and that there
was no other evidence to support the complainant's claim. There was no
documentation of the supervisor's request or witnesses to support the
complainant's version of the events. Based on the lack of evidence,
the agency found the complainant failed to carry his burden of proof
and concluded that he had not proved he was discriminated against.
ANALYSIS AND FINDINGS
The Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state
a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995). Moreover, the
Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action usually are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No.05940695 (February 9, 1995).
Based on this authority, the alleged statement of the supervisor
accompanied by the requirement that he do a collection run was enough
to state a claim of harassment based on disability. Nevertheless, in
light of our finding of no discrimination outlined below, the supervisor's
statement is insufficient to merit an independent investigation.
On review of the entire record, we find the complainant's claim that
he was required to do a collection run was not sufficiently supported
by specific facts surrounding the incident. There was no evidence,
either testimonial or documentary, to support his contention that he
was required to perform this task or a description of the additional
duty the complainant alleges he was required to do. The complainant's
one sentence affidavit states only that he was �told to run collection
despite disability� but he gave no indication that he actually performed
the task, what it entailed or why it violated his medical restrictions.
At most, the complainant has shown there was a proposal to require that
he run a collection which is normally not enough to state a claim, let
alone sustain a finding of discrimination. See 29 C.F.R.�1614.107(a)(5).
Therefore, based on the lack of specificity given by the complainant and
the lack of the evidence that the agency took concrete action against
the complainant, we AFFIRM the agency's finding of no discrimination.
CONCLUSION
Therefore, after consideration of the record as a whole, including
statements of the parties and evidence not specifically mentioned herein,
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
3/28/01
Date
1Under the Commission's amended regulations, there is no right to appeal
the dismissal of part of a complaint. 29 C.F.R.�1614.401. We decide it
at this time because there is a final agency decision on the complaint.