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.