01a03518
09-06-2000
Robert L. Cooper v. United States Postal Service, 01A03518 September 6, 2000 . Robert L. Cooper, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert L. Cooper v. United States Postal Service,
01A03518
September 6, 2000
.
Robert L. Cooper,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03518
Agency Nos. 4F-950-0147-98
4F-950-0250-97
Hearing Nos.370-99-2195X
370-00-2005X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. , � 501 of the Rehabilitation Act of 1973, 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.<1> The appeal
is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the reasons
set forth below, we AFFIRM the agency's final action.
ISSUE PRESENTED
The issue presented is whether complainant proved that he was
discriminated against because of his race (Caucasian), color (white),
sex (male), national origin (Scottish/Irish), religion (Protestant), age
(DOB: 6/11/45), and physical disability (arm, back and leg injuries) when:
(1) he was �written up� by a Customer Services Coordinator on July 7,
1997; and (2) on March 24, 1998, he received notice that his workers
compensation claim had been denied because of, what he believed to be,
erroneous information submitted by the Injury Compensation Office.
BACKGROUND
Complainant filed two formal complaints against the agency. Following
an investigation, he was provided a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing, but the AJ, in granting
a motion by the agency, decided that a decision without a hearing would
be appropriate. On February 9, 2000, the AJ issued a decision finding
that complainant had not been discriminated against with regard to
either claim. On March 13, 2000, the agency issued a Notice of Final
Action that implemented the decision of the AJ. It is from this decision
that complainant now appeals.
Claim I
At the time of his complaint, the complainant was employed as a
Distribution Window Clerk at the Pinedale Station in Fresno, California.
The record indicates that on July 2, 1997, D-1, a Customer Services
Coordinator for the San Jose District, visited the Pinedale Station
in order to observe its retail operations. Afterward, she prepared a
report that described the service she received from complainant, the
clerk on duty that day. According to D-1, she asked complainant if a
letter mailed to San Francisco that day would arrive the following day.
D-1's report indicates that complainant answered �no,� but did not
suggest an alternative course of action. She also noted that he had
given a similar response to the customer who was in front of her. A-1,
complainant's supervisor, testified that she merely spoke to complainant
about D-1's report. According to A-1, she specifically told complainant
that no disciplinary action would, or could be taken as a result of
the report. The AJ, finding that there was no evidence to suggest that
complainant received any discipline as a result of D-1's observations
and report, held that:
[D-1's] action in making comments, even if they were critical, about the
performance of a Window Clerk in a report on retail operations which did
not result in discipline or other negative action to the complainant
cannot be viewed as a tangible adverse employment action because the
complainant did not suffer any adverse effect in the terms, conditions,
or privileges of his employment.
AJ's Decision at pg. 7. Because there was no persuasive evidence
that complainant was subjected to an adverse employment action, the AJ
found that he did not establish a prima facie case of discrimination.
The AJ, however, noted that even if complainant had established a prima
facie case regarding any bases, there was no evidence that either D-1
or A-1harbored any discriminatory motives.
Claim II
According to complainant, his OWCP claim was denied because the
Injury Compensation Office submitted erroneous information to the
Department of Labor. The AJ noted that the investigative file contained
�abundant evidence that the complainant provided a considerable amount of
documentation to the OWCP which showed his disagreement� with statements
made by his supervisor and an agency physician. The record indicates,
however, that after reviewing the evidence, including complainant's
statements, the OWCP found that his injury was not work-related.
Consequently, the AJ found that:
the adverse decision by OWCP simply cannot be characterized as a tangible
adverse action by the Postal Service or otherwise attributed to the Postal
Service. Rather, it is an action by OWCP at the Department of Labor.
Id. at pg. 9. Because there was no persuasive evidence that complainant
was subjected to an adverse employment action, the AJ found that
complainant did not establish a prima facie case of discrimination.
Again, the AJ noted that even if complainant had established a prima
facie case, regarding any bases, there was no evidence of discriminatory
intent by any agency official.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
action because the Administrative Judge's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
__09-06-00____________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.