Archibald Forsyth, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.

Equal Employment Opportunity CommissionDec 29, 2004
01a35059 (E.E.O.C. Dec. 29, 2004)

01a35059

12-29-2004

Archibald Forsyth, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.


Archibald Forsyth, Jr. v. United States Postal Service

01A35059

December 29, 2004

.

Archibald Forsyth, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area)

Agency.

Appeal No. 01A35059

Agency No. 4G-700-0163-02

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's final decision in the above-entitled matter.

Complainant alleged that the agency had discriminated against him, in

violation of the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

on the bases of disability (back injury) and age (D.O.B. 9/11/49) when,

on March 26, 2002, he was subjected to harassment when his supervisor

forced him to perform duties outside of his restrictions, screamed at

him in front of his co-workers, and misstated his restrictions.

Complainant, a letter carrier, sustained a back injury while he was

delivering his route on February 22, 2002. He claims that he was forced

to work beyond his medical restrictions on March 26, 2002, when he was

forced by his supervisor (S1) to deliver mail. Complainant claims that

his doctor restricted him from driving. S1 claims that he never required

complainant to work beyond his medical restrictions. In addition,

complainant claims that S1 kept questioning his restrictions and

questioned when he would be able to return to full duty. Complainant

felt harassed and threatened. In addition, complainant claims that

he was discriminated against on the basis of his age. Specifically,

he states that S1 told him several times that he was getting too old for

his job and maybe he should find another job. S1 denies such statements.

S1 testified that the issue of age came up on only one occasion and it

was complainant who told S1 that he was getting too old for his job and

needed to find another one. S1 testified that he merely agreed with

what complainant had said to console him.

The evidence of record shows the following. Complainant's physician

(P1) originally restricted complainant to driving 6 hours per day on

February 22, 2002.<1> On February 25, 2002, complainant's physician

reduced complainant's driving restriction to 4 hours per day. On March

1, 2002, complainant's driving restriction remained at 4 hours per day.

On March 8, 2002, complainant's driving restriction increased to 6 hours

per day. On March 14, 2002, complainant's physician filled out another

medical restriction form identical to those before. However, the amount

of complainant's driving restriction noted by the physician was unclear.

It could have been meant that complainant was permitted to drive 6 hours

per day or 0 hours per day. The record contains two different copies

of this form, the original, of which is unclear, and another copy where

the number clearly is a 6.

Complainant and one co-worker (C1) (who is also a union representative)

claim that during a meeting, S1 stated that he believed that the number

intended by P1 was a 6 and he corrected the number to clearly show the 6.

S1 and an agency witness who was also at this meeting deny that S1

ever stated that he changed the form. S1 stated in an affidavit that

complainant misconstrued what was stated at the meeting. S1 alleged

that he told complainant that the number looked like a 6 to him and not

a 0 as complainant suggested. There is no statement of P1 in the record

clarifying his restrictions on March 14, 2002. Even if S1 did alter the

form, there is no other corroborating evidence in the record to support

the finding that S1 intended to alter P1's medical restrictions.

S1 and the postmaster deny all of the allegations of harassment. However,

C1 testified that there were many accounts of �cursing, belittling,

and harassment� toward complainant by S1. Specifically, C1 testified:

[S1 and the postmaster] intensely watched [complainant's] every move as

[he performed] his office carrier duties. If he moved too slow, did some

action which they perceived was not efficient or did something trivial

they would quickly correct him, but they did not correct other carriers

for the same actions. [Complainant's medical restrictions] allowed him to

sit down at intervals which [S1 and the postmaster] would come quickly

and get him to remain standing. With the beginning of March, 2002,

[S1 and the postmaster] would make numerous comments that [complainant]

was well and he could easily go back on the street.

C1 also stated that on March 26, 2002, he heard S1 state to complainant

in a loud voice �I am tired of you being on light duty, you are able to

go back on the street to deliver mail.� According to C1, complainant

replied that his back was hurting all the time and his doctor told him

that he cannot deliver the mail. According to S1, complainant's doctor

did not restrict him from delivering the mail. C1 testified that he

believed that S1 altered the medical restriction form and changed the

number of hours complainant was permitted to drive from a 0 to a 6.

ANALYSIS AND FINDINGS

Assuming, arguendo, that complainant is an individual with a disability,

under the Rehabilitation Act, we nevertheless find insufficient

evidence in the record to prove, by a preponderance of the evidence,

that complainant was in fact restricted to 0 hours of driving at the

time S1 forced complainant to deliver his route. Accordingly, we find

insufficient evidence to prove that complainant was forced to work

beyond his medical restrictions at any time. Specifically, we find

the original May 14, 2002 medical restriction unclear. Yet the May 8,

2002 medical restriction clearly permitted complainant to drive up to

6 hours per day. Since there is no evidence in the record to suggest

that complainant's physical condition deteriorated since May 8, 2002,

there is no basis to find that he was restricted from driving on May 14,

2002. Even if we find that S1 had written on the May 14, 2002 medical

restriction to show a clear 6, the evidence is not sufficient to prove

that S1 intended to change the intentions of P1.

The evidence shows that on May 26, 2002, complainant came back from

carrying his route and told S1 that he hurt his back. S1 sent complainant

to his physician who only then indicated that he should be restricted

to sedentary work until seen by a back specialist. Accordingly, we find

insufficient evidence in the record to prove that complainant was forced

to work beyond his medical restrictions on or before May 26, 2002.

With respect to complainant's claim of harassment, while we are troubled

by C1's testimony, we find that complainant does not present sufficient

facts to prove that his work environment was sufficiently severe or

hostile to alter the conditions of his employment. In addition, since

we find that complainant was medically permitted to drive between March

8, 2002 and March 26, 2002, S1's attempts to get complainant to perform

his driving duties during that time cannot be construed as harassment.

We also find insufficient evidence of age animus in the record. We note

that there is no corroborating evidence to support complainant's claims

that S1 told him that he was getting too old for his job. In addition,

complainant provides few details of the type of alleged age comments or

the occasions when such comments occurred. Accordingly, we find that

complainant failed to prove such comments occurred by a preponderance

of the evidence.

Accordingly, after a review of the record in its entirety, including

consideration of all statements submitted on appeal, it is the decision

of the Equal Employment Opportunity Commission to affirm the agency's

final decision because the preponderance of the evidence of record does

not establish that discrimination occurred.

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

December 29, 2004

__________________

Date

1 Complainant had other restrictions not relevant here, which included

lifting no more than 10 pounds over a 4 hour period which improved to

no more than 20 pounds on March 14, 2002.