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