James A. Reece, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 20, 2009
0120091011 (E.E.O.C. Feb. 20, 2009)

0120091011

02-20-2009

James A. Reece, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


James A. Reece,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091011

Agency No. 1E-984-0012-06

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's May 16, 2007, final decision concerning his equal

employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

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

29 U.S.C. � 621 et seq. Complainant alleged that the agency discriminated

against him on the bases of race (African-American), disability (dizziness

and depression), age (63), and in reprisal for prior protected EEO

activity and that it subjected him to a hostile work environment when:

1. On July 27, 2006, he was issued a 14-Day Suspension for Creating

an Unpleasant Work Environment/Unacceptable Conduct and Behavior (race,

age, disability);1

2. On an unspecified date his supervisor followed him around,

yelled at him, and made him take shorter breaks (race, age, disability);

3. On August 17, 2006, he was denied Family Medical Leave Act (FMLA)

rights and placed off the clock from August 17, 2006 until September 5,

2006 (race, age disability, reprisal); and

4. He was issued six 14-Day Suspensions within the prior six months

(race, age, disability, reprisal).

Procedural Dismissals

The agency issued a final agency decision finding no discrimination.

The agency dismissed issue #2, for failure to state a claim. The agency

indicated that complainant failed to show that he was subjected to

an adverse action when his supervisor allegedly followed him around,

yelled at him and made him take shorter breaks. The agency explained

that there was no evidence that complainant was denied any entitlement

in relation to a term, condition or privilege of employment as a result

of the incidents alleged.

The agency also dismissed issue #4, complainant being issued six 14-Day

Suspensions within the prior six months, for untimely EEO Counselor

contact. The agency explained that other than the suspension at issue,

complainant had last been issued a suspension on October 22, 2005.

The agency correctly maintained that complainant's initial EEO Counselor

contact on August 8, 2006, was well beyond the 45 day time limit to

contact an EEO Counselor. Accordingly, the issue was dismissed for

untimely EEO Counselor contact. Upon review, the Commission agrees that

issues #2 and #4 were properly dismissed on procedural grounds.

Disparate Treatment Discrimination

The agency found that assuming arguendo that complainant established

a prima facie case as to all his bases the agency had articulated a

legitimate nondiscriminatory reason for its actions. Specifically, the

agency stated that with respect to issue #1, complainant was issued the

July 27, 2006, suspension because complainant made several inappropriate

and insensitive comments about an employee that had passed away.2

Further, with respect to issue #3, the agency indicated that it did

not deny complainant FMLA leave. The agency explained that complainant

was told that due to his medical restrictions he had to request light

duty. Complainant's medical documentation indicated that he was taking

medication that caused him physical problems, which included dizziness,

and headaches when bending, stooping, twisting or lifting objects

from the floor. It was also noted in the medical documentation that

complainant could not work around machines except for two particular

types of machines. He was told that based on his restrictions, he had

to request light duty. Complainant initially indicated that he would

not request light duty so he was given leave without pay. Complainant

eventually returned to his physician and made the request for light duty.

The agency also maintained that during the time in question complainant

requested annual leave in order to attend his daughter's wedding and

because complainant did not have enough annual leave, leave without pay

was again granted. The agency indicated that once the requested medical

documentation was submitted, complainant's FMLA request was approved.

The agency concluded that complainant failed to show that the agency's

reasons were pretext for discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision.

The Commission agrees that the agency has articulated legitimate

nondiscriminatory reasons for its actions, namely that complainant was

issued a suspension as a result of his behavior and he was placed off

the clock because clarification was needed regarding his restrictions.

We also agree that complainant has not demonstrated that those reasons

were pretext for discrimination. We find that other than complainant's

own contentions, he has not provided any evidence that suggests that his

race, age, disability or prior EEO activity was considered with regard

to the instant complaint.

Hostile Work Environment

Finally, with respect to complainant's contention that he was subjected

to a hostile work environment, it is well-settled that harassment based

on an individual's protected status is unlawful, if it is sufficiently

patterned or pervasive; usually, however, a single incident or a group

of isolated incidents will not be regarded as discriminatory harassment.

Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);

Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).

In this matter, while complainant is a member of a protected class based

on his race, disability, age, and prior EEO activity, he has not shown

that the agency's actions were based on race, age, disability or taken

in reprisal. Further, we find that they were not sufficiently severe

or pervasive to rise to the level of illegal harassment. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)

(harassment is actionable if it is sufficiently severe or pervasive to

alter the conditions of the complainant's employment).

Accordingly, we find the preponderance of the evidence of record does

not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

02/20/09

__________________

Date

1 Complainant made insensitive comments about a former employee who had

passed away in the presence of several coworkers who were highly upset

by his behavior.

2 Complainant told his supervisor that he was glad that the former

employee had died and that he was celebrating her death.

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0120091011

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036