Robert L. Cooperv.United States Postal Service, 01A03518 September 6, 2000 . Robert L. Cooper, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 6, 2000
01a03518 (E.E.O.C. Sep. 6, 2000)

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.