05990014
03-04-2002
Vernon B. Summers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Vernon B. Summers v. United States Postal Service
05990014
March 4, 2002
.
Vernon B. Summers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 05990014
Appeal No. 01964402
Agency No. 1F-937-1054-94
Hearing No. 370-95-X2625
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Vernon
B. Summers v. United States Postal Service, EEOC Appeal No. 01964402
(August 25, 1998). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant alleged that he was discriminated against on the bases of
his race (white), sex (male), age (DOB March 25, 1954) and disability
(knees) in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> when:
on June 27, 1994, the agency's Injury Compensation Office denied his
CA-16, which authorized medical treatment for his June 21, 1994, injury
resulting in medical bills for $143 and $72 being unpaid;
on July 1, 1994, his United States Department of Labor, Office of
Workers Compensation (OWCP) claim was controverted;
his July 6, 1994, OWCP claim was untimely processed and falsified; and
his July 6, 1994, OWCP claim was controverted.
Complainant, a PS-9, Electronic Technician at the agency's Fresno,
California facility, filed a formal complaint of discrimination
on September 30, 1994. Complainant requested a hearing before an
Administrative Judge, who issued a decision without a hearing, concluding
that complainant was not aggrieved within the meaning of our regulations.
In EEOC Appeal No. 01964402, the Commission affirmed the agency's decision
to adopt the Administrative Judge's findings. From our previous decision,
complainant now requests reconsideration.
While we find no reason to disturb our previous decision and complainant
fails to meet the criteria for reconsideration, we have throughly
reviewed the record assuming that complainant is an individual with a
disability under the Rehabilitation Act. The facts, which precipitated
the filing of the formal complaint, are not in dispute. On June 21,
1994, and again on July 1, 1994, complainant sustained knee injuries
for which he sought medical treatment, and subsequently, reimbursement
through the agency's Injury Compensation Office.
The record reveals that the processing of complainant's claim for his
injury sustained on June 21, 1994, was delayed, in part, because he
failed to submit the proper administrative forms in the proper sequence.
Once complainant submitted the appropriate forms, the Injury Compensation
Office controverted his claim, resulting in further delay. The record
reveals that OWCP overruled the agency and reimbursed complainant's
medical bills for $143 and $72. We note that complainant's initial
request for compensation was made on June 27, 1994, and that compensation
was made by OWCP on or about August 23, 1994.
There remains no evidence that the agency falsified, untimely processed
or controverted complainant's claim for his July 1, 1994, knee injury.
Contrary to the allegation made in the formal complaint, OWCP accepted
complainant's July 1, 1994, claim without controversion by the agency.
In fact, the record reveals that OWCP accepted the claim for his July
injury on September 6, 1994.
Because there is no genuine issue of material fact in dispute,
the Administrative Judge appropriately issued a decision without a
hearing. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Administrative Judge also appropriately concluded that complainant
is not aggrieved under our regulations and precedent. The Commission's
federal sector case precedent has defined an �aggrieved employee� as
one who suffers a present harm to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994); 29 C.F.R. �
1614.107(a). In this case, the administrative delays attendant to the
processing of complainant's OWCP claims do not render him aggrieved.
Complainant has not identified any harm to a term, condition, or privilege
of his employment. Adherence to OWCP's guidelines, which allow agencies
to controvert claims and require that forms be submitted in a certain
fashion, do not render complainant aggrieved where there is no inference
of discrimination.
Complainant also argues that the processing of his OWCP claims created
a hostile work environment. Even when viewed in a light most favorable
to complainant, the group of isolated incidents related to his June
21, 1994, OWCP claim are not sufficiently severe as to unreasonably
interfere with his work environment or create an intimidating, hostile,
or offensive work environment. Nor was the challenged conduct pervasive.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. We conclude, therefore ,
that complainant was not subjected to a hostile work environment.
Accordingly, after a review of complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01964402 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
March 4, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.