01A30232
02-18-2004
Martin M. Bashinski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Martin M. Bashinski v. United States Postal Service
01A30232
February 18, 2004
.
Martin M. Bashinski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30232
Agency Nos. 4F-920-0224-99; 4F-920-0205-98;
4F-920-0375-99; and 4F-920-0037-00
Hearing Nos. 340-A0-3145X, 340-A0-3146x,
340-A0-3148x and 340-A0-3423x
DECISION
The complainant initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaints of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.<1> For the following reasons, the Commission
AFFIRMS the agency's final order.
The record reveals that the complainant was a Modified Distribution
Window Clerk at the agency's Midway P &DF facility. The complainant filed
formal EEO complaints, alleging discrimination on the bases of disability
(enthesopathy of ankles, knees and feet and anxiety disorder) and reprisal
for prior EEO activity. The complainant specifically alleged that the
agency violated EEOC laws when the agency instructed him to submit to a
medical evaluation and update his medical documentation, reassigned him,
disapproved his request for leave, placed him on emergency suspension,
issued three suspensions and subsequently issued a Notice of Removal.
At the conclusion of the investigations, the complainant requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing on
June 4 -6, 2002, the AJ issued a bench decision finding no discrimination
and no retaliation.<2> The agency's Notice of Final Action implemented
the AJ's decision.
The Commission finds that the AJ's findings of fact are supported
by substantial evidence in the record and that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
February 18, 2004
__________________
Date
1 We note that the notice of appeal predates the agency's Notice of
Final Action. It is accepted as timely filed, for purposes of expediency.
2 For purposes of this decision, we assume without finding that the
complainant is an individual with a disability.