01a42205
10-13-2005
Robert Marty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert Marty v. United States Postal Service
01A42205
October 13, 2005
.
Robert Marty,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42205
Agency No. 1-H-328-0021-01
Hearing No. 1-H-328-0021-01
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
The complainant claimed that he was subjected to disparate treatment and
a hostile work environment based on disability (HIV positive) starting
around December 1997 during his hiring process and continuing.<1>
Following an investigation, the complainant requested a hearing.
Prior to the hearing, an Equal Employment Opportunity Commission (EEOC)
Administrative Judge (AJ) issued an order defining the complainant's
complaint and dismissing a portion thereof on the grounds that the
complainant failed to timely raise these matters with an EEO counselor,
and they were discrete incidents. Following a hearing on the remainder
of the claim, the AJ found no discrimination. The final action of the
agency implemented the AJ's decision.
On appeal, the complainant broadly contests the AJ's definition of the
complaint. He also broadly objected at the hearing, indicating he wanted
everything included. Given that the complainant purported that his claim
was encompassed in a 90 plus page single spaced narrative detailing events
from his hiring process in 1997 to June 2001, it was proper for the AJ to
attempt to define the claim and ask the complainant at the hearing whether
there were any specific issues that were missed that he wanted considered.
The only responsive answers by the complainant to the AJ's question were
identifying improper requests for medical information during the hiring
process (he was hired in September 1998), and the denial of training
and overtime. The complainant stated �that was pretty much it.�
The complainant first sought EEO counseling on April 26, 2000.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). Claims about the hiring process are tied into the
complainant's hiring, a discrete event which occurred in September 1998.
Further, denial of training and overtime incidents that occurred more
than 45 calendar days prior to the complainant seeking counseling were
also discrete incidents. These matters were properly dismissed by the AJ.
Regarding the merits of the accepted portion of the complainant's
complaint, 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 final
agency order because the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.<2>
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
October 13, 2005
__________________
Date
1For purposes of analysis only, we assume without finding that the
complainant is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).
2Even if a portion of the complainant's training claim was improperly
dismissed, the Commission would not remand the matter for further
investigation. The bases of the complainant's complaint was the
disability of HIV positive. He failed to establish that relevant agency
officials were aware that he was HIV positive despite being given an
opportunity to do so. Incidents of harassment referred to in the AJ's
definition of the complaint are just examples of the harassment claim,
and for the period after the complainant's hiring to June 2001, all the
non-discrete acts which were part of the harassment claim are timely
and are included therein.