01a40741
04-11-2005
Ricky Muzny, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.
Ricky Muzny v. United States Postal Service
01A40741
April 11, 2005
.
Ricky Muzny,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area)
Agency.
Appeal No. 01A40741
Agency Nos. 4G-730-0034-00; 4G-730-0051-00; 4G-730-0061-00;
4G-730-0122-00; 4G-730-0129-00;
4G-730-001-02; 4G-730-0054-02
Hearing No. 310-A1-5393X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaints 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Letter Carrier at the agency's
Westside Station, Oklahoma City facility, filed formal EEO complaints on
March 3, 2000, July 11, 2000, September 20, 2000, October 6 2000, December
5, 2000, November 15, 2001 and April 1, 2002. Complainant alleged that
the agency discriminated against him on the bases of his sex (male),
his disability (HIV/AIDS), and in reprisal for prior EEO activity when:
(1) he was subjected to harassment and a hostile work environment for
the period November 1999 to June 2002 and beyond<1>;
he was treated less favorably in the application of overtime rules and
rules regarding tardiness;
his supervisor threatened to shoot him;
he was referred for psychiatric and physical fitness for duty
examinations; and
he was subjected to sexual harassment by co-workers.
At the conclusion of the investigation, complainant received copies
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination.
The AJ found that complainant is a qualified individual with a disability
in that he is HIV positive and his subsequent illness from autoimmune
deficiency syndrome (AIDS) substantially limited him in a major life
activity.<2> The AJ concluded, however, that there was little evidence
that the numerous incidents he cited were harassment based on his
asserted protected classes. The AJ relied on the testimony of a union
official (S1) who stated that some comments by managers were intended
to get complainant to increase his productivity and not to harass him.
The AJ credited S1's assessment that there were numerous complaints by
other employees about the agency's overtime tracking system, meaning that
complainant was not singled out for harassment. S1 further explained
that many employees, not just complainant were questioned about being
late, such that he was not treated more harshly.
The AJ determined that the agency's fitness for duty examinations were not
designed to harass complainant but were legitimatebecause of complainant's
constant complaints about his co-workers' and supervisors' statements and
actions as well as concerns about his productivity. The AJ concluded that
there was substantial evidence that complainant had paranoid tendencies
based on the agency's psychiatric and psychological reports.
The AJ found that the agency performed an investigation into complainant's
allegation that his supervisor (S2) threatened to shoot him, but there
was inconclusive evidence that the comment, if made, was directed at
complainant. Addressing the agency's breach of a settlement agreement,
the AJ concluded that the breach was not intentional and that once S2 was
made aware of the terms of the agreement he corrected the error. Based on
these findings, the AJ concluded that the agency did not discriminate
against complainant on any of the alleged bases. The agency's final
order fully implemented the AJ's decision.
Complainant contends that the AJ's findings of fact contained numerous
errors noting for instance, that he had not alleged that his premises
had been wiretapped but only that his co-workers seemed to know about his
private conversations. Complainant disputes the AJ's conclusion that he
is paranoid because the AJ based his conclusion solely on the statements
of the agency's doctors. He also disputes the AJ's conclusion that the
fitness for duty examination and the numerous overtime tracking errors
were not acts of harassment. The agency argues that the AJ's conclusions
were based on substantial evidence in the record and should be affirmed
on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), the Commission will uphold all
post-hearing factual findings by an AJ if supported by substantial
evidence in the record. Substantial evidence is defined as �such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.� Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
We will assume for purposes of this decision that complainant is an
individual with a disability as defined by the law. Complainant has
alleged disparate treatment and not a failure to accommodate his
disability, therefore, we considered whether the AJ was correct in
determining there was no difference in the treatment he received.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Complainant failed to establish that the AJ's decision was not supported
by substantial evidence in the record. For that reason, we discern no
basis to disturb the AJ's decision. Therefore, after due consideration
of the submissions, including complainant's contentions on appeal, the
agency's response, and arguments and evidence not specifically addressed
in this decision, we affirm the agency's final order.
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
April 11, 2005
________________
Date
1The Commission's decision in Muzny v. United
States Postal Service (EEOC Appeal No. 01A02904 et al, November 17, 2000)
ordered that complainant's claim of breach of a settlement agreement
be included as background evidence of harassment. In the decision,
the Commission found that the agency breached a settlement agreement
when it denied him an overtime request.
2 HIV is the abbreviation for human immunodeficiency virus.