01a00080
12-06-2000
Douglas H. Stup, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Douglas H. Stup v. United States Postal Service
01A00080
December 6, 2000
.
Douglas H. Stup,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A00080
Agency No. 1K-221-0093-98
Hearing No. 100-99-7512X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the basis of reprisal (prior EEO activity)
when on June 2, 1998, he was twice directed to perform tasks outside
the scope of his duties.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a PS-5 Distribution Clerk employed
at the agency's Merrifield Processing and Distribution Center, filed a
formal EEO complaint with the agency on September 14, 1998, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding that complainant failed to state a claim of reprisal.
The undisputed record shows the following: On June 2, 1998, complainant's
supervisor instructed complainant to distribute mail to the loading dock
and onto the appropriate trucks. Complainant's position description
includes such functions and management has the exclusive right to direct
employees of the United States Postal Service in the performance of
their official duties. The undisputed record also shows that Clerks in
complainant's section were routinely and uniformly required to perform
such functions. While complainant contends that he was permitted to
�work outside his bid job,� there is no evidence or sufficiently detailed
allegations to support this contention.<2>
The agency's final decision implemented the AJ's decision.
On appeal, complainant contends, inter alia, that the AJ erred when he
failed to address and consider: (1) the fact that complainant had filed
a prior EEO complaint against the same supervisor regarding incidents
occurring in September and October, 1997; (2) that complainant had
represented approximately 13 individuals in prior EEO complaints
against the agency; (3) a prior unrelated settlement agreement between
complainant and the agency which the agency agreed to �always act
in a professional manner when performing duties of a supervisory
nature and to treat all employees equally and fairly without regard
to any discriminatory factor;�<3> and (4) the existence of a pattern
of harassment. In addition, for the first time on appeal, complainant
describes<4> the job duties of a �General Expediter� in an attempt to
show that the responsibility to distribute mail to the loading dock and
onto the appropriate trucks falls under such position description rather
than his own position of Distribution Clerk.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Contrary to complainant's
contentions, the AJ did consider the fact that complainant engaged in
prior protected activity and that his supervisor knew of such activity.
In addition, the record fails to show that complainant was treated
differently from similarly situated individuals outside complainant's
protected class or that any of the agency's actions were motivated by
retaliation for his engagement in prior EEO activity.
Moreover, we find that even if complainant could show that he was asked
to perform functions outside his bid job, the incidents alleged would
not indicate that complainant has been subjected to harassment that was
sufficiently severe or pervasive to alter the conditions of employment.
Moreover, the complaint does not otherwise challenge an unlawful
employment policy or practice. See Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997).
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
December 6, 2000
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant failed to respond to a request by the investigator to
complete an investigative affidavit and questionnaire on specific
unaddressed relevant issues. However, for the first time on appeal,
complainant argues that the requested duties fell outside his official
duties.
3 There is no indication that complainant is alleging breach of settlement
agreement. However, without deciding the issue of timeliness, should
complainant desire to pursue a breach of settlement allegation against
the agency, he should immediately contact an EEO counselor.
4 We note that complainant fails to provide corroborating evidence of
his description of the General Expediter position, nor does he provide
evidence that the Distribution Clerk position excludes such duties.