01a51823
09-15-2005
Ronald M. Baronia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald M. Baronia v. United States Postal Service
01A51823
September 15, 2005
.
Ronald M. Baronia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51823
Agency No. 1F-941-0010-04
DECISION
Complainant appeals to the Commission from the agency's decision
dated December 8, 2004, finding no discrimination. In his complaint,
complainant, a Distribution Clerk at the agency's Reseda Post Office,
alleged discrimination based on race (Asian) and disability (heart and
perceived) when on August 27, 2003, he was accused of reading the mail and
his supervisor held his time card; on September 23, 2003, he was passed
for 6th day overtime; on September 23, 2003, he requested a shop steward
and was threatened, which caused him to collapse on the floor and while
he was on the floor, his supervisor kicked him; and, on November 11,
2003, his supervisor refused to accept PS Form 3971, Request for Leave,
which was subsequently denied. The agency, in its decision, concluded
that it asserted legitimate, nondiscriminatory reasons for its actions,
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 incidents. Specifically, complainant's supervisor stated
that on August 27, 2003, the Manager saw complainant reading the mail
and asked the supervisor to remind complainant about the policy against
reading mail. The supervisor stated that when he approached complainant
about this issue, he became hostile, slammed his hand down on his desk
and said �You get me a shop steward right now or I am going to start
doing things.� The supervisor indicated that although it was near the
end of the shift, he got complainant to see a steward. The supervisor
stated that he only held on to complainant's timecard so he could talk to
him before he left. However, since complainant wanted to go home and the
steward did not have time to talk to them, the Manager told the supervisor
to return the time card to complainant which he did. The supervisor
indicated that complainant clocked out on time and went home.
The supervisor also stated that on September 23, 2003, it came to
his attention that complainant had been passed over for overtime,
and that he was given a make-up opportunity to correct the oversight.
He further stated that complainant requested a steward concerning the
matter. Complainant was allowed to speak to the steward for 30 minutes
on this day, and when they returned, the steward asked for more time.
The supervisor indicates that he wanted to talk to them individually,
but complainant rushed toward him and said, �what do you want now?� The
supervisor then told complainant that he would not tolerate this behavior,
and at that point complainant collapsed on the floor, grabbing his chest,
and stating that he was in pain. The supervisor stayed with him while
911 was called. He denied any assault on complainant during that time.
Complainant claimed that another employee, a Safety Officer, told him
that the supervisor kicked him while he was on the floor. The Safety
Officer, asserting that he was misquoted and taken out of context,
stated that, �I saw [the supervisor] gently kicking [complainant's]
leg who was unconscious on the floor. I was standing about 12 feet away
when this happened.� The Manager stated that he did not witness anyone
kicking complainant during the incident.
The supervisor also stated that tour overtime was called while
complainant was working on a holiday on November 11, 2003, and that his
name came up in the rotation. Complainant tossed a request for leave on
his desk, requesting to be excused from the overtime, and said, �Just
sign it, I ain't staying.� The supervisor denied the request because
complainant did not notify anyone early enough in the day to allow for
another employee to be notified to cover the shift. Upon review, the
Commission finds that complainant failed to proffer any evidence that
the agency's reasons were pretext for discrimination. After a review
of the record, the Commission finds that complainant failed to show,
by a preponderance of the evidence, that he was discriminated against
on the bases of race or disability. Complainant failed to show that
any of the agency's alleged actions were motivated by discrimination.
The agency's decision finding no discrimination is AFFIRMED.<1>
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
September 15, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The Commission does not address in this decision whether complainant
is a qualified individual with a disability.