01992677
02-05-2002
John E. Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
John E. Green v. United States Postal Service
01992677
February 5, 2002
.
John E. Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01992677
Agency No. 4D-270-1078-94
Hearing No. 140-97-8142X
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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the agency's final decision is affirmed.
The record reveals that complainant, a Custodian at the agency's
Goldsboro, North Carolina facility, filed a formal EEO complaint alleging
that the agency had discriminated against him on the bases of his race
(Black), age (42 years), and disability (hypertension, diabetes, surgery
on neck, insomnia, and sinusitis) when on January 24, 1994, he was called
in to the Postmaster's office and told by the Postmaster and Customer
Service Supervisor that he was not doing his job and that they would be
checking on his work. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing before
an EEOC Administrative Judge. The Administrative Judge bifurcated the
claim because the investigation did not address complainant's claim of
disability discrimination.<2> After the agency adequately investigated
the disability claim, the Administrative Judge held a hearing and
subsequently issued a decision finding no discrimination. The agency
adopted the Administrative Judge's finding of no discrimination but did
not adopt the Administrative Judge's determination that complainant
was a qualified individual with a disability within the meaning of
the Rehabilitation Act. It is from the agency's decision complainant
now appeals. On appeal, complainant states that he was harassed by
management after returning from Desert Storm with several illnesses.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
Assuming arguendo for purposes of this decision only that complainant
is a qualified individual with a disability within the meaning of
the Rehabilitation Act and after a careful review of the record, the
Commission finds that the Administrative Judge's findings of fact are
supported by substantial evidence in the record and that his decision
referenced the appropriate regulations, policies, and laws. We concur
with the Administrative Judge's conclusion that the conduct about which
complainant complains, namely that he was told by management that he
was not doing his job and that his work would be checked was neither
sufficiently severe or pervasive to rise to a level of actionable
harassment. Furthermore, we agree that complainant failed to prove
that management took action based on complainant's membership in a
protected class. See Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems, Inc. at 3, 6. We thus discern no basis
to disturb the Administrative Judge's finding of no discrimination,
and we affirm the agency's final decision.
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
February 5, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 In Green v. United States Postal Service, Request No. 05971035 (February
27, 1998), the Commission affirmed the Administrative Judge's finding
that complainant was not discriminated against based on his race or age.