01a41386
04-06-2005
Martin L. Grady, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Martin L. Grady, Sr. v. United States Postal Service
01A41386
April 6, 2005
.
Martin L. Grady, Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41386
Agency No. 1B-021-0075-98
Hearing No. 160-AO-8663X
DECISION
Complainant filed this appeal with the Commission from the agency's
November 5, 2003 decision, implementing the September 29, 2003 decision
of the EEOC Administrative Judge (AJ) finding no discrimination and
which also found that part of the complaint failed to state a claim.
The record reveals that complainant filed a complaint alleging that
the agency discriminated against him on the bases of his disability and
age when:
1. On May 8, 1998, the agency rejected complainant's application for
the position of Maintenance Operations Supervisor, EAS-16; and
2. Complainant was subjected to harassment when the following incidents
occurred: (a) on May 8, 1998, his supervisor searched his equipment
locker for a vacuum cleaner; (b) on May 9, 1998, his supervisor denied
him use of a vacuum cleaner, denied him sick leave, ordered complainant
to go to a hospital for a medical evaluation, and charged him with
6.23 hours of absence without leave (AWOL); and (c) on May 12, 1998,
the agency issued him a letter of warning for the May 9, 1998 incident
that occurred between complainant and his supervisor.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ issued his decision.
Regarding complainant's disability, the AJ found that complainant also
had not shown that he had a disability at the time of his complaint or
previous to the complaint or that the agency knew of any disability.
The AJ also found that complainant did not show that he was regarded as
having a disability. The AJ concluded that complainant failed to show
that he came under the protection of the Rehabilitation Act.
Regarding the non-selection, the AJ noted that complainant was not
among the five successful candidates selected by three panel members
to be interviewed for the position. The AJ found that complainant's
application was not considered because he did not follow the format
instructions to address the knowledge, skills and abilities portion of
the application.
Regarding claim 2, the AJ determined that complainant was not aggrieved
when complainant's supervisor searched complainant's locker and denied
him use of a vacuum cleaner. The AJ concluded further that even
if complainant were aggrieved by these actions, complainant did not
establish that complainant's supervisor was motivated by discrimination.
In this regard, the AJ found that there was a lack of vacuum cleaners for
maintenance employees. The AJ noted that complainant did not dispute
that he was advised by agency personnel to place any vacuum cleaner
used on the storage shelf. The AJ found that complainant's locker
was searched because a vacuum cleaner was needed and a co-worker told
complainant's supervisor that complainant had placed a vacuum cleaner
inside complainant's locker. Regarding the supervisor's denial of
complainant's use of a vacuum, the AJ indicated that the vacuum was
attached to another machine and complainant was advised to check first
with the mechanic using the vacuum cleaner but that complainant did not
do so.
Concerning complainant's claims that he was ordered to go the hospital
for a medical evaluation and charged with AWOL, the AJ found that
complainant left the workplace contrary to his supervisor's instructions
and without authorization. Regarding the denial of sick leave, the AJ
found that complainant's supervisor disapproved the sick leave request
because complainant refused to obtain an immediate medical evaluation.
The AJ also found that complainant had failed to show that others
outside of complainant's protected class were not placed on AWOL for
leaving the workplace without authorization, ordered for a medical
examination or denied sick leave when requesting it upon a directive
to seek medical attention. With regard to the letter of warning, the
AJ found that complainant received the letter of warning because he
refused to go to the hospital as directed and ended his tour of duty
without authorization. He found that complainant failed to show that
the supervisor of Maintenance Operations failed to discipline others
not in complainant's protected classes for similar conduct.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record.
Assuming arguendo that complainant established a prima facie case
of disability and age discrimination,<1> the agency has articulated
non-discriminatory reasons for its actions in rejecting complainant's
application for the position of Maintenance Operations Supervisor,
searching complainant's locker, denying complainant the use of a
vacuum cleaner, denying complainant's request for sick leave, ordering
complainant to go to a hospital for a medical evaluation, charging
complainant absence without leave, and issuing complainant a letter
of warning. Even assuming that a claim of harassment was stated,
the AJ properly determined that the actions complained of were not
motivated by discrimination. Moreover, complainant has failed to show
by a preponderance of the evidence that the agency's actions were mere
pretext for discrimination.
The agency's decision finding no discrimination is AFFIRMED.
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
April 6, 2005
__________________
Date
1For the purposes of this decision, the
Commission assumes, without deciding, that complainant is a qualified
individual with a disability.