01A30102
08-14-2003
Mark F. Elmore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark F. Elmore v. United States Postal Service
01A30102
08-14-03
.
Mark F. Elmore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30102
Agency No. 4J-460-0184-97
Hearing No. 240-A1-5036X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on
the basis of reprisal for prior EEO activity when:
(1) on July 19, 1997, complainant's supervisor followed him to the street
to observe his route;
(2) on July 21, 1997, the supervisor required that complainant be
returned from the streets, and complainant was denied a copy of the
observation form;
(3) on April 15, 1997, the supervisor falsified that mail count;
(4) on April 16, 1997, the supervisor threw away good mail;
(5) on April 17, 1997, the supervisor accused complainant of taking a
sixteen-minute break and followed him the rest of his route;
(6) on July 7, 1997, the supervisor counted his mail but would not let
him verify the count, and no one else's mail was counted;
(7) on July 7, 1997, the supervisor refused his request for overtime;
(8) on July 8, 1997, complainant was given an official discussion on
the use of overtime;
(9) on July 8, 1997, complainant's mail was counted again and he was
not allowed to contact the EEO office or union representative;
(10) on December 4, 1997, complainant was not given time to complete his
defined federal duties, he was told to read the bulletin board everyday,
his mail was miscounted, he was not allowed to verify the count, and he
received a delayed copy of the PS for 1838;
(11) on April 15, 1997, the supervisor falsified his mail count, and he
was not allowed to verify it;
(12) on April 26, 1997, complainant was ordered to carry mail differently
than other carriers and the supervisor gave him a direct order to go to
the employee assistance program (EAP);
(13) on December 8, 1997, the supervisor observed complainant on the
street and held him to only 8 hours; and
(14) on December 10, 1997, the supervisor told complainant to stop taking
small parcels from his tub while other carriers were allowed to do so.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
__08-14-03________________
Date
1Complainant filed six separate complaints
that were consolidated for a hearing.