01a40380
03-30-2005
Michael Lipstein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Lipstein v. United States Postal Service
01A40380, 01A52114
March 30, 2005
.
Michael Lipstein,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A40380, 01A52114
Agency Nos. 1H-342-0016-01, 1H-342-0004-03
DECISION
Complainant appeals to the Commission from the agency's September 26,
2003 and December 22, 2004 decisions finding no discrimination. In a
complaint dated November 27, 2001, complainant alleged discrimination
on the basis of disability (chemical sensitivity) when from August 2,
2001 and continuing he was subjected to a hostile work environment when
management engaged in certain activities regarding his request for an
accommodation related to his sensitivity to perfume. Specifically,
complainant alleges that co-workers wear too much perfume/cologne which
causes him migraine headaches. He requested that management ask the
employees to stop using excess amounts of perfume/cologne. Instead,
complainant alleges that management singled him out during a stand up talk
and caused hostility in the office. Further, complainant alleges that
after the service talk, the co-workers and management began wearing more
perfume/cologne than normal. Complainant requested, as an accommodation,
a policy limiting or restricting the use of perfume/cologne. Complainant
also alleges that he was retaliated against when he received a job
discussion for failure to relieve an employee for his break even though
management knew he could not relieve the employee because complainant
had been released to meet with his EEO representative. The agency
issued a decision dated September 26, 2003 finding no discrimination.
Specifically, the agency found that complainant was not shown that he
was a disabled individual under the Rehabilitation Act. Further the
agency found that assuming, arguendo, that complainant is an individual
with a disability, the agency supplied complainant with a reasonable
accommodation. With regard to complainant's retaliation claim, the
agency found that complainant had not shown harm to a term, condition or
privilege of employment by receiving the job discussion. Complainant now
appeals the September 26, 2003 decision.
In a complainant dated February 6, 2003, complainant alleged
discrimination on the bases of disability and reprisal when on December
10, 2002, as a result of having requested a reasonable accommodation,
he was made the object of scorn and ridicule by his supervisor and
coworkers. Essentially, complainant argues that he was subjected
to a hostile work environment based on reprisal when his co-workers
ridiculed him. The agency issued a decision dated December 22, 2004
finding no discrimination. The agency found that complainant had not
shown a prima facie case of disability or reprisal discrimination.
The agency further found that assuming complainant has shown a prima
facie case of discrimination, he was not shown conduct that is severe
or pervasive enough to constitute a hostile work environment.
The Commission, pursuant to 29 C.F.R. � 1614.606, consolidates
complainant's appeals.
Complainant argues that he has had the disability since 1991, however, is
was not until 2002 that he began to develop symptoms. Complainant argues
that after he requested a reasonable accommodation, he was subjected to
ridicule and scorn.
An �individual with a disability� is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I
of the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
Complainant argues that he suffered from chemical sensitivity since 1991.
The record contains two documents, dated August 30, 2001, submitted by
complainant related to his chemical sensitivity. One document is written
on a prescription pad and signed by complainant's doctor and reads:
�Perfume Fragrances Triggering Migraine HA in patient � environmental
changes should be made.� The second document is a Family Medical Leave
Act (FMLA) form also signed by complainant's doctor indicating that
complainant suffers chronic migraines with a probable duration of one
year to a life time. The FMLA form indicates that the probable time
and duration complainant will need off work is 1 - 5 days per month.
Complainant does not submit any other documentation of his disability.
Assuming that complainant is an individual with a disability, complainant
has failed to show the agency failed to reasonably accommodate the
disability. The record indicates that when complainant requested not
to work with an individual, whenever possible, either complainant or
the individual were moved to a different job. Furthermore, the agency
requested that employees tone down their usage of cologne/perfume. Thus,
we find that the agency provided a reasonable accommodation in response
to the medical documentation submitted by complainant. We do not address
in this decision whether complainant is an individual with a disability.
With regard to complainant's claim that he was retaliated against, we find
that complainant has not shown how the job discussion resulted in harm
to a term, condition or privilege of employment. Therefore, the claim
regarding the job discussion is properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1). With regard to complainant's second complaint, we find
that complainant has not shown a nexus between his protected activities
and the purported ridicule he experienced. The record indicates that
management requested that employees �tone down their perfume.� The record
indicates that many of complainant's co-workers were upset when told to
�tone down their perfume.� According to testimony from co-workers and
management, complainant would �make hand gestures at certain employee's
[sic], by grabbing his nose and waving his hand as if to say that they
smelled.� The record indicates that complainant's co-workers were
upset about the gestures and would, at times, express their feelings.
We find the record does not support complainant's allegation that the
co-workers actions were in reprisal for EEO activity. Thus, there is no
nexus between complainant's protected activity and the alleged hostile
work environment. Furthermore, the record further indicates that when
management was aware of altercations, both parties were called into the
supervisor's office in an attempt to resolve the situation. We find that
complainant has not shown, by a preponderance of the evidence, that
the co-worker's actions were in reprisal for protected EEO activity.
Instead, the coworkers actions appear to merely be a result of toxic
interpersonal relationships among co-workers.
We find that complainant has not shown, by a preponderance of the
evidence, he has been discriminated against on the bases of disability
or reprisal.
The agency's decisions are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 30, 2005
__________________
Date