Calvin McPeters, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01a45694 (E.E.O.C. Nov. 24, 2004)

01a45694

11-24-2004

Calvin McPeters, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Calvin McPeters v. United States Postal Service

01A45694

11/24/04

.

Calvin McPeters,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45694

Agency No. 1H-336-0151-02

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Modified Clerk at the agency's Tampa Florida Processing &

Distribution Center facility. Complainant sought EEO counseling and

subsequently filed a formal complaint on February 11, 2003, alleging

that he was discriminated against on the bases of sex (male), disability

(on the job injury), and age (52 at the time) when, from July 21, 2002

through August 20, 2002, he was harassed by a co-worker and removed from

his work area.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Initially

complainant requested a hearing, but then withdrew that request and

asked for a final decision by the agency.

In its FAD, the agency concluded that complainant failed to establish

that he was subjected to harassment because of his membership in a

protected class. Rather, the agency concluded that both complainant

and the offending co-worker participated in sexual banter which was

inappropritae. Further, once complainant informed management about the

conduct, the agency conducted an investigation and separated complainant

from the co-worker, as he requested. As for his disability claim, the

agency found that when complainant was removed from his reassignment,

he was placed into a position within his medical restrictions.

Complainant makes no contentions on appeal.

The Commission concurs with the agency's determination that complainant

failed to establish that he was subjected to harassment because of

his membership in a protected class. Although there was evidence that

complainant and the co-worker both participated in sexual banter, the

agency investigated the matter and instructed the offending co-worker

to stop discussing her personal life at work. Furthermore, there is no

allegation that complainant felt harassed after the agency investigated

the matter and separated complainant from the co-worker.

As for his disability claim, we do find evidence to support complainant's

claim that the offending co-worker told complainant that she did not

want �rehabilitation employees,� such as complainant working in her area.

Assuming, arguendo, that complainant is an individual with a disability,

we do not find that complainant can prevail on his harassment claim due

to this remark. Once complainant informed management, they took prompt,

effective action to end the conduct. Furthermore, complainant was removed

to an express mail unit where his restrictions were complied with.

The record reveals that complainant was removed to the express unit

after requesting not to work near the offending employee, and because

of scheduling shift considerations. Accordingly, he also failed to

establish he was denied an accommodation.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we affirm the FAD.

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

11/24/04

Date