Robert Marty, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 13, 2005
01a42205 (E.E.O.C. Oct. 13, 2005)

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.