0520130400
09-10-2013
Gary E. Bergman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Gary E. Bergman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520130400
Appeal No. 0120113504
Hearing No. 480-2010-00620X
Agency No. 4F-913-0032-10
DENIAL
Complainant timely requested reconsideration of the decision in Gary E. Bergman v. U.S. Postal Service, EEOC Appeal No. 0120113504 (April 11, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the appellate decision, Complainant, a City Carrier, alleged that the Agency discriminated against him on the bases of disability, age (58), and in reprisal for prior protected EEO activity arising under Title VII, the ADEA, and the Rehabilitation Act when, since on or around February 12, 2010, he has been subjected to harassment and he has not been accommodated, when additional stops were added to his delivery route. An EEOC Administrative Judge (AJ) issued a decision without a hearing finding that Complainant failed to show that he was subjected to discrimination. Specifically, the AJ found that Complainant did not establish that the Agency failed to provide him with a reasonable accommodation, as he did not establish a nexus between his disabling conditions and his requested accommodation that additional stops not be added to his route. Further, the AJ found that the adjustment made to his route did not violate his work restrictions at the time. In short, the AJ determined that Complainant had been provided an effective accommodation in the form of daily street help. Additionally, the AJ found that Complainant had failed to establish his disparate treatment claims based on age and reprisal for prior protected EEO activity because he failed to show that similarly situated employees not of his protected bases were treated more favorably. Notwithstanding, the AJ found that assuming arguendo Complainant established a prima facie case of discrimination, the Agency had articulated legitimate, nondiscriminatory reasons for its actions, namely, that the route change was the result of a national route adjustment process, and Complainant had failed to show that the reasons were pretext for discrimination. Finally, the AJ found that Complainant failed to show that he had been subjected to harassment because he failed to prove that the actions or statements were because of his age, disability, or in reprisal for his prior EEO conduct, and he failed to show that the actions or statements were sufficiently severe or pervasive such that a hostile work environment existed. The AJ determined that Complainant failed to prove his case. The Agency fully implemented the AJ's finding. The Commission affirmed the Agency's final order which found no discrimination.
REQUEST FOR RECONSIDERATION CONTENTIONS
In his request for reconsideration, Complainant contends among other things that he cannot understand how this decision was reached when he previously had a case that produced a finding of discrimination. Complainant explains that the Agency has still not complied with the Order in that case. Further, Complainant contends that the computer generated route adjustment that the Agency relied on incorrectly evaluated 99% of all routes and they had to be redone. Complainant also maintains that contrary to the Agency's argument, he was not provided help with his route from February 2010 until May 2010. Complainant also discusses the problems with the EEO process at the Agency and maintains that the Agency knows that a case will take forever so the Agency takes advantage of that. Complainant maintains that he has suffered numerous injuries and illnesses as a result of his work for the Agency and he just wants his case to be processed.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The Commission finds that Complainant has not provided any evidence which suggests that he was subjected to discrimination and harassment. As the AJ pointed out Complainant's restrictions were different in the previous case. Accordingly, we find that the decision in EEOC Appeal No. 0120113504 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__9/10/13________________
Date
2
0520130400
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520130400