01a00596
02-18-2000
Stephen D. Mason, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stephen D. Mason, )
Complainant, )
)
v. ) Appeal No. 01A00596
) Agency No. 4K-200-0043-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
The Commission finds that the agency's October 5, 1999 decision finding
that the agency did not discriminate against complainant based on
complainant's race (Afro-American), color (black), religion (Islam),
sex (male), age (over 40), disability (eyesight), and retaliation, was
proper.<1> Complainant alleged in his complaint that he was discriminated
against when he was issued a Notice of Suspension for fourteen calendar
days beginning November 22, 1997 (the agency misstated the length of
and beginning date of suspension). Complainant requested a decision
from the agency without a hearing.
The Commission notes that complainant also alleged in his complaint
that he was discriminated against on the basis of national origin.
Complainant did not identify his national origin in his complaint.
In the affidavit that complainant provided to the EEO investigator,
complainant mentioned the other bases of discrimination considered by
the agency in the October 5, 1999 decision but did not list national
origin as a basis in the matter. The Commission shall address the basis
of national origin discrimination in the instant decision.
The Notice of Suspension dated October 28, 1997 shows that complainant
was suspended for �unsatisfactory work performance/failure to follow
instructions.� The October 28, 1997 Notice stated that on October 18,
1997 complainant failed to take the parcels for his route when he left
for the street. The Notice stated that complainant had �been instructed
repeatedly to take the parcels on [complainant's] first trip to the
street, but [complainant] refuse[s] to comply.� The Notice explained that
other carriers were required to carry the parcels, because complainant
did not return to carry them. The Notice stated that complainant's safety
concerns about carrying the parcels were not justified. The Notice also
referred to an incident on October 22, 1997 when, despite instructions
otherwise, complainant pulled a parcel hamper across the workroom floor
(an unsafe act).
Complainant argues, regarding the October 18, 1997 incident, that he left
the parcels at the station because he could not see out of the back and
side windows of the vehicle with the parcels in the vehicle. Regarding
the October 22, 1997 incident, complainant admits that he pulled the
hamper after he was instructed not to pull the hamper. Complainant argues
that he was treated differently because other carriers leave parcels at
the station and other employees pull hampers. The Commission notes that
although complainant also argues that he pulled the hamper in part because
of his eyesight, complainant specifically states that he did not ask for
any accommodation for his eyesight condition. The Commission finds that
complainant is not arguing in the instant matter that the agency failed
to reasonably accommodate any disability complainant may have.
In an affidavit the Supervisor stated the following regarding the October
18, 1997 incident:
There have been situations where other carriers have come to me and
reported that they had an excessive number of parcels; I reviewed the
situation and made adjustments as warranted. I am not aware of another
carrier who left parcels in the station without saying anything about it.
The Supervisor further stated that although complainant did state
that it was a safety hazard to carry the parcels after the Supervisor
inquired about the parcels, the Supervisor determined that there was no
safety hazard. Regarding the hamper incident, the Supervisor stated:
I have instructed other carriers to stop pulling a hamper when I observed
them doing so, and they complied. I am not aware of any employee who
blatantly refused to follow a supervisor's instructions as [complainant]
did.
The Commission finds that the explanation for the suspension provided
in the Notice of Suspension and in the Supervisor's affidavit to be
legitimate and non-discriminatory. The Commission finds that complainant
has failed rebut the agency's legitimate explanation and has failed to
show that the discipline at issue was motivated in any way by prohibited
discriminatory animus.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 18, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ 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.