Vernon B. Summers, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionMar 4, 2002
05990014 (E.E.O.C. Mar. 4, 2002)

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.