01A30954
12-29-2003
Paul Jensen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Paul Jensen v. United States Postal Service
01A30954
December 29, 2003
.
Paul Jensen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01A30954
Agency No. 4G-700-0049-02
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency had discriminated against him,
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., on the bases of race (Caucasian)
and reprisal for prior EEO activity when: (1) on October 25, 2001,
he was instructed to work at a desk located at the far opposite corner
of where he was accustomed to working which required him to stand for a
period exceeding his medical limitations; (2) on November 3, 2001, he was
instructed to work zone 70123 hit-ups; and (3) on November 26, 2001, his
limited duty hours and days off were changed effective December 1, 2001.
Complainant has not established a prima facie case of reprisal, since the
record is devoid of evidence supporting the finding that any responsible
management official had knowledge of complainant's prior EEO activity
at the time of the employment actions at issue herein.
With respect to complainant's claim of race discrimination, we find
that the preponderance of the record does not support a finding of
discrimination with respect to any claim. Specifically, while the
record contains contradictory evidence as to whether, on October 25,
2001, complainant's supervisor (S1) instructed complainant to move to a
different desk or whether complainant, himself, requested to move to a
different desk, the complainant has not proven, by a preponderance of the
evidence that race was a motivating factor in S1's employment decision.
With respect to Issue 2, we also find that complainant failed to prove,
by a preponderance of the evidence, that S1 was motivated by race when she
instructed complainant to work zone 70123 hit-ups. While the record shows
that two Black light/limited duty employees were not asked to perform
such work on November 3, 2001, the record shows that such employees did
not have the same restrictions that complainant had. Accordingly, the
two Black employees were not similarly situated to complainant and it is
possible that those employees were expected to perform other tasks within
their medical restrictions that complainant was not able to perform.<1>
We note that the record is devoid of evidence establishing racial animus
on the part of S1.
Lastly, with respect to Issue 3, we find that the preponderance of
the evidence establishes that in November 2001, complainant presented
new medical restrictions to a new supervisor, S2, who determined that
complainant was not permitted to perform casing duties which occurred
during the morning hours. Accordingly, S2 testified that he changed
complainant's hours since there was no work within his restrictions
in the early morning. The associate supervisor (S0) (white) (no prior
EEO activity) corroborated S2's testimony with respect to this issue.
Complainant contends that S2 and S0 have given false testimony.
In addition, complainant has provided a written statement from three
clerks who state that �at no time whatsoever since [complainant] has
returned to work after knee surgery has there been insufficient work
within his physical restrictions. There is no valid reason why the job
duties he performs cannot be done during his original tour hours of 7:30
a.m. to 4:00 p.m.� There is no indication in the record whether these
witnesses were in a position to know whether or not sufficient work within
complainant's physical restrictions existed. Had complainant requested a
hearing before an EEOC Administrative Judge, perhaps this and other issues
could have been explored. However, based upon the record before us, we
must conclude that complainant has not established, by a preponderance
of the evidence, that S2 changed his hours because of his race.
Accordingly, 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 because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
December 29, 2003
__________________
Date
1 The record indicates that the Black limited/light duty employees were
able to case mail, while complainant's medical restrictions prohibited
him from performing this function.