01971454
06-21-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Robert G. Pistone v. United States Postal Service
01971454
June 21, 1999
Robert G. Pistone,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Areas),
Agency.
Appeal No. 01971454
Agency No. 4F-956-1069-95
Hearing No. 370-96-X2262
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that the agency discriminated against him
in violation of Title VII of the Civil Rights Act of 1964, 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 (Act) of 1973, as amended, 29 U.S.C. �791 et seq.
Appellant alleged discrimination on the bases of race (Caucasian),
color (white), sex (male), age (born 11/4/48), physical disability
(spine strain, right shoulder, etc.), mental disability (cumulative
emotional distress) and retaliation (prior EEO activity), when he
was denied accommodation for his physical disability and continually
harassed by management by being given new job offers. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960.001.
For the reasons that follow, the FAD is AFFIRMED.
At the time of the alleged discriminatory events, appellant was
employed as a Distribution/Box Clerk at the Folsom Post Office in Folsom,
California. Believing that he was the victim of discrimination, appellant
sought EEO counseling and, thereafter, filed a formal EEO complaint.
The agency accepted the complaint for investigation. Subsequently,
appellant requested a hearing before an EEOC Administrative Judge (AJ).
Thereafter, the agency filed a motion for findings and conclusions without
a hearing. See 29 C.F.R. � 1614.109(e). However, after appellant
failed to respond to the agency's motion and failed to respond to the
AJ's notice to appellant, the AJ remanded the case to the agency for
dismissal or the issuance of a FAD on the merits. Thereafter, the agency
decided the case on the merits and issued a FAD, dated September 25,
1996, finding no discrimination. It is from this agency decision that
appellant now appeals. No contentions were submitted on appeal.
The investigative record reveals that appellant suffered an on-the-job
injury in December 1993. In response to appellant's changing medical
capabilities, and in an attempt to accommodate his physical limitations,
the agency offered appellant a series of limited duty assignments. All of
the assignments were accepted by appellant. During the relevant time
frame the agency continued to offer appellant limited duty assignments
that would accommodate him, based on the recommendations of his physician.
However, in December 1994, appellant stopped working, based on the
advice of his psychiatrist, and no longer accepted offers for limited
duty assignments.
Appellant asserted that he was subjected to harassing comments by the
postmaster (P1). In his investigative affidavit, P1 stated that he made
a comment to appellant to the effect that "we could fix his shoulder and
arm by cutting it off and getting him a new one." P1 also stated that
prior to December 1994, he and appellant regularly engaged in friendly,
joking banter. P1 further averred that in response to a note he received
from appellant stating that he no longer wished to be joked with, the
relationship became one which P1 characterized as strictly business.
In any event, the evidence of record does not support a finding that P1
took any adverse action against appellant as a result of their changed
relationship.
Applying the legal standards outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), Prewitt v.United States Postal Service, 662
F.2d 292 (5th Cir. 1981)(applying the McDonnell Douglas standard to
disability cases), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(applying the McDonnell Douglas standard to age cases) and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318,
324 (D.Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)(applying the McDonnell
Douglas standard to reprisal cases), we find no basis to disturb the
agency's decision. Appellant presented no evidence of discriminatory
animus on the part of the agency and failed to show that he was subjected
to disparate treatment. In this regard, appellant did not show that he
was denied a request for reasonable accommodation and he failed to show
how offers of new job assignments amounted to harassment.
Additionally, assuming the remark attributed to P1 was presented as
alleged by appellant, the remark, if anything, was isolated, and did
not appear to be severe and pervasive enough to support a discriminatory
hostile work environment claim. See Harris v. Forklift Systems, Inc.,
114 S.Ct. 367 (1993) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986)); Frye v. Department of Labor, EEOC Request No. 05950152 (February
8, 1996). The conduct in question is evaluated from the standpoint
of a reasonable person, taking into account the particular context in
which it occurred. Highlander v. K.F.C. Management Co., 805 F.2d 644
(6th Cir. 1986). Unless the conduct is very severe, a single incident
or a group of isolated incidents will not be regarded as discriminatory
treatment. Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982).
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the FAD presented the relevant facts, and properly analyzed
the appropriate regulations, policies and laws. Accordingly, the FAD is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
6/21/99
______________ ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations