0120083212
09-25-2008
James M. Monsour, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James M. Monsour,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083212
Agency No. 4E-553-0052-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 27, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging 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.
Complainant worked as a mail processor machine operator at the facility in
La Crosse, Wisconsin. Complainant claimed that the agency discriminated
against him on the bases of sex (male), disability (ears, right hand)1,
and in reprisal for prior protected EEO activity when he was harassed and
subjected to a hostile work environment in regard to the following events:
(a) in September 2007, another employee was given special treatment;
(b) in July 2007, another employee was assigned to a detail; (c) in
January 2008, his supervisor (S1) requested medical documentation to
support his absence; and (d) he was denied training.
Following an investigation, complainant did not request a hearing,
and the agency issued a final agency decision (FAD), finding that the
agency did not discriminate against complainant.
For purposes of analysis of this matter, we assume, arguendo, that
complainant established a prima facie case of discrimination on all bases
alleged and turn to consideration of the agency's articulated reasons for
its actions. As to (a), the agency stated that complainant was denied
a change of work hours, in that, the work of his bid job was on Tour 3,
and his comparative employee was an unassigned regular on limited duty;
as to (b), the agency stated that complainant never applied or expressed
interest in detail assignments; as to (c), agency managers explained that
complainant had excused medical leave for one day but did not return to
work and failed to call the next day; and, as to (d), in response to an
agency solicitation for applications for higher-level work, complainant
submitted an incomplete application, failing to respond to two of the four
required elements. Complainant did not offer evidence to demonstrate
that the agency's articulated legitimate, nondiscriminatory reasons
were pretext for discrimination; that its actions were based on his
sex, disability, or prior EEO activity; or that the alleged harassing
conditions claim of work area was so permeated with discrimination that
it rose to the level of illegal harassment and was severe and pervasive.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__09/25/2008________________
Date
1 Complainant identified his physical condition as neuropathy in his right
hand, part of a 40% veterans disability rating. Veterans preference or
status is not a protected basis for filing an EEO complaint. See Ness
v. USPS, EEOC Appeal No. 01981368 (November 21, 2000). He stated that his
hearing condition was diagnosed in 2007, but provides little information.
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0120083212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083212