01a54378
11-23-2005
Christopher H. Ordway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christopher H. Ordway v. United States Postal Service
01A54378
11/23/2005
.
Christopher H. Ordway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54378
Agency No. 1H-302-0057-04
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) dated May 3, 2005, 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 Mail Processing Machine Operator at the agency's Duluth,
GA facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on October 26, 2004, alleging that he was discriminated
against on the bases of disability (Cervical Degenerative Disc Disease)<1>
and in reprisal for prior EEO activity.
The agency issued a partial acceptance/dismissal letter dated December
15, 2004. Therein, it determined that complainant's complaint was
comprised of the following claims:
1. on April 27, 2004, management failed to provide [complainant]
with medical assistance;
2. during the week of July 20, 2004, the Injury Compensation Office
denied [complainant] access and refused to provide [him] with assistance
with the submission of [his] paperwork;
3. on July 21, 2004, [complainant was] harassed by [a named manager] with
regards to [his] work productivity and the dust mask that [he] wear[s];
4. on July 22, 2004, [complainant] was treated different[ly] when
[two named supervisors] changed [his] work routine; and
5. on October 8, 2004, the Injury Compensation Specialist...refused to
provide [him] with a dated and stamped copy of [his] CA-17 and doctor's
letter.
The agency accepted claim (4) for investigation. However, the agency
dismissed claims (1), (2), (3), and (5). The agency dismissed claim (1)
for untimely EEO Counselor contact. The agency dismissed claims (2),
(3), and (5) for failure to state a claim. Specifically, the agency
stated that claims (2) and (5) constitute a collateral attack on the
Office of Workers' Compensation Programs (OWCP) process. Regarding claim
(3), the agency stated that �[t]he action taken by your supervisor were
instructions that concern part of your assigned duties and was a matter
that is clearly within the realm of supervisory prerogative.�
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant was not subjected
to unlawful discrimination and/or retaliation. The agency found that
complainant was not an individual with a disability. Moreover, the
agency found that complainant failed to present sufficient evidence that
the agency's actions were based on his protected classes.
On appeal, complainant asserts that the agency's final decision finding
no discrimination was improper. Specifically, complainant asserts that he
was denied access to medical care and he was not told how to get approval
for reimbursement of his prescriptions. Complainant further asserts that
�[t]he retaliation has been going on for years and not limited to [two
named agency managers] it is all divisions related to ...DOL/OWCP/USPS.�
Claim (4)-Change in Work Routine
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
A review of the record reflects that complainant is alleging that on
July 22, 2004, he was moved from working on the reject belt to working on
missent mail. Specifically, complainant, in his affidavit, states that
he worked on missent mail until lunch and then went back and worked at
the reject belt. Complainant further asserts that �some boxes weigh
50 pounds and I only can work 20 pounds.� We find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The record contains a copy of an EEO Dispute Resolution Specialist's
Inquiry Report. Therein, an EEO Specialist stated that a supervisor (S1)
asserted that complainant generally works on the reject belt; however,
�if there's no mail volume available or if there's a mechanical problem,
he can temporarily be moved to an area within the guidelines of his
restrictions.�
The record also contains an affidavit from another supervisor (S2).
Therein, S2 asserts that he does not know if complainant worked on missent
mail on the date in question. However, S2 further asserts that �I have
never seen him pick up more than 1or 2 pounds.� Furthermore, S2 asserts
that he has never asked complainant to work outside of his restrictions.
Upon review of the record, including complainant's statement on appeal,
we find that complainant has failed to present sufficient evidence that
the agency's reasons were pretext for discrimination
Partial Dismissal
Claim (1)-Failure to Provide Medical Assistance
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
We find that agency properly dismissed claim (1) for untimely EEO
Counselor contact. The record reflects that complainant initiated EEO
Counselor contact on July 23, 2004. The date of the alleged incident
with respect to claim (1) was April 27, 2004, the record reflects that
complainant initiated EEO Counselor contact on July 23, 2004, outside of
the applicable time limit. We find that complainant has failed to provide
sufficient justification for extending or tolling the time limitation.
Claims (2) and (5)-Refusal of Injury Compensation Office to Assist with
Paperwork and Refusal to Provide Copy of CA-17
We find that the agency properly dismissed claims (2) and (5) for failure
to state a claim. The Commission has held that an employee cannot use the
EEO complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). With respect to claims (2)
and (5), we find that complainant is attempting to collaterally attack
the OWCP process.
Claim (3)-Harassment
We find that the agency properly dismissed claim (3) for failure to
state a claim. A review of the record reflects that complainant is
alleging that he was harassed by a named manager for not working fast
enough and for wearing a mask. We find that the alleged incidents
are not sufficiently severe or pervasive to state an actionable claim
of harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Accordingly, we AFFIRM the agency's final decision finding no
discrimination.
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
11/23/2005
Date
1For purposes of analysis only, we assume, without finding, that
complainant is a person with a disability.