0120081342
03-05-2010
Richard D. Howe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Richard D. Howe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120081342
Agency No. 4E890009107
DECISION
Complainant appeals to the Commission from the agency's decision dated
December 20, 2007, finding no discrimination. In his complaint, dated
July 16, 2007, which was later amended, complainant, a City Letter
Carrier at the Reno, Nevada Post Office, alleged discrimination based
on disability (legally blind in one eye) when on May 1, 2007, he was
informed that his schedule reporting time of 0630, which accommodated his
medical condition, would be changed to 0730. Complainant also alleged
discrimination in reprisal for prior EEO activity when: since September 6,
2007, he was subjected to harassment in regards to, but not limited to,
working conditions and being overly scrutinized; on September 8, 2007,
he was subjected to an official discussion for clocking out early on
September 7, 2007; and he was repeatedly belittled, bullied, intimidated,
berated, and slandered by his manager.
After completion of the investigation of the complaint, complainant
requested a final decision from the agency. The agency thus issued
its decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the alleged actions. Complainant stated that he has been accommodated
and reporting to work at the 0630 starting time since he arrived to the
agency in 1991 in order to avoid the heavy traffic and constant lights and
pressure that impacted his vision, specially his right eye. Complainant
indicated that the flow of traffic during his commute from Lake Tahoe
to Reno at 0530-0600 was ninety percent lighter than at 0630-0700.
Complainant's manager, who began in that position in January 2006,
stated that since all his employees reported to work at 0730, he
thought complainant should report to work at the same time. During the
relevant time period at issue, the manager asked complainant to provide
medical documentation to support his requested 0630 reporting time.
The manager stated that complainant had submitted an "internal medicine"
doctor's note dated September 28, 2005, indicating that complainant was
suffering from "severe keratoconus."1 In the September 28, 2005 note,
the doctor indicated that complainant was able to drive but had difficulty
particularly when encountering "oncoming lights" and stated that he should
remain permanently on a 6:30 a.m. start time. The manager, determining
the note too vague, asked complainant to submit updated and necessary
medical documentation. When complainant failed to provide such, the
manager changed his reporting time from 0630 to 0730 to correspond to
the starting time of all of the other carriers.
The record indicates that complainant filed a grievance on May 8, 2007,
concerning the same matter. During the grievance, complainant brought
forth his medical documentation issued by ophthalmologists and/or doctors
in eye clinics dated 1972 and 1975 concerning his vision impairment.
The record indicates that the manager was not provided with these
documents during the relevant time period at issue. On August 24, 2007,
a grievance decision resolved the subject matter and the agency returned
complainant's starting time to 0630. Meanwhile, complainant reported
to work at the 0730 starting time from April 28 to September 7, 2007,
and successfully performed the duties of his position.
With regard to the incidents in September 2007, the manager denied
harassing complainant and stated that his actions were not motivated
by any discrimination. Complainant claimed that the manager ordered
his supervisors to issue him the official discussion at issue when
he clocked out early. The manager denied such action. Complainant's
supervisor (S1) stated that the manager told him to "put the heat on"
complainant and S1 stated that he had been personally harassed by the
same manager. S1 stated that he has not harassed or over-scrutinized
complainant. S2 stated that the manager did not tell him to "put the
heat on" complainant and he stated that he did not over-scrutinize,
belittle, bully, intimidate or slander complainant. S2 stated that
he saw complainant and a co-worker speaking while complainant was on
the clock and the co-worker was not on the clock and he stated he asked
the co-worker to allow complainant to return to work. Complainant also
claimed that his coworkers told him that the manager belittled, berated,
bullied, intimidated, and slandered him during management meetings.
The manager again denied such. The manager stated that it was his
job to control attendance and unscheduled absences of his employees,
including complainant.
Assuming (without deciding) that complainant was an individual with
a disability, we find that complainant failed to show that he was
denied a reasonable accommodation or that any agency actions were
motivated by discrimination. Complainant does not allege that he
was required to perform his duties beyond his medical restrictions.
Complainant indicated that he was able to perform the essential functions
of his position and stated he was not on light or limited duty status.
There is no evidence to support that complainant could not drive later
in the morning to arrive at the 0730 starting time when it was less dark
than driving to report at the 0630 starting time. In fact, complainant
indicated that it was merely difficult for him to drive, and not that he
was unable or medically restricted, to drive from 0630-0700. We also
find that complainant failed to show that the remaining incidents were
sufficiently severe or pervasive to rise to the level of harassment or
that any agency actions were motivated by discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
3/5/10
__________________
Date
1 The record revealed complainant's condition involved progressive
thinning and distortion of the cornea.
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2
0120081342
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013