Stephen D. Mason, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01a00596 (E.E.O.C. Feb. 18, 2000)

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.