Morris Martin, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 19, 2005
01a54107 (E.E.O.C. Oct. 19, 2005)

01a54107

10-19-2005

Morris Martin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Morris Martin v. United States Postal Service

01A54107

October 19, 2005

.

Morris Martin,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A54107

Agency No. 1J-464-0022-02

Hearing No. 240-2005-00032X

DECISION

Complainant filed an appeal with this Commission concerning his

complaint of unlawful employment discrimination. Complainant alleged

that the agency had discriminated against him on the bases of race

(African-American), sex (male), and in reprisal for prior EEO activity

when:

1. On May 30, 2002, complainant was denied 10 hours sick leave.

On June 5, 2002, management refused to discuss complainant's denial of

sick leave.

Between July 21 through August 29, 2002, complainant was harassed by

his supervisors.

On February 15, 2005, an EEOC Administrative Judge (AJ) issued a decision

dismissing the complaint because complainant failed to prosecute

his case. The AJ stated that she and the agency representative were

unable to contact complainant because complainant never complied with

the Acknowledgment and Scheduling Order to file a telephone number

with the AJ where he could be contacted for the prehearing conference.

Furthermore, the AJ stated that complainant did not contact the AJ on

the scheduled prehearing conference date to inquire about the status of

his complaint. The AJ noted that complainant has failed to file any of

the submission requirements contained in the Commission's Acknowledgment

and Scheduling Order.

On April 13, 2005, the agency issued a decision finding no discrimination.

The agency, in its decision, concluded that it asserted a legitimate,

nondiscriminatory reason for its actions, which complainant failed

to rebut. Thereafter, complainant filed the instant appeal.

We find that the agency has articulated a legitimate, nondiscriminatory

reason for its actions. As to the complainant's claim that he was denied

sick leave, the Supervisor of Distribution Operations (SDO) stated that

complainant left work early on May 30, 2002, and requested sick leave.

The SDO reported that complainant failed to provide the acceptable

documentation that she requested that complainant provide to her.

Regarding complainant claim that management refused to discuss his denial

of sick leave, the Manager of Distribution Operations (MDO) said that she

did not recall speaking with complainant about the denial of sick leave.

The MDO mentioned that she could have been busy if complainant requested

to speak with her and she would have directed complainant to speak with

her at a later time.

With respect to the claim of harassment, complainant alleged that he was

subjected to harassment by his supervisors. The MDO stated that she was

not aware of what specific actions complainant was alleging with regard

to his harassment claim, but that whenever complainant failed to follow

or challenged a supervisor's instructions, complainant thought it was

harassment regardless of whether the supervisor was male or female, black,

white or Hispanic. The MDO said that complainant was never harassed on

the basis of sex or race. The MDO commented that complainant advised her

in 2003, that the SDO was harassing him, but that the MDO's investigation

revealed that complainant was not following instructions and was being

loud and disruptive to the unit. The MDO indicated that complainant was

never sexually harassed and that she does not think day-to-day supervisor

instruction is harassment. The MDO stated that complainant continues

to challenge instruction as he always has, especially if he does not

like the instruction or does not want to perform it. The MDO reported

that complainant was issued a Notice of Suspension of 14 days or less

(the next step in the progressive discipline process) for failing to

follow instructions (based on USPS Code of Conduct and ELM sections

666, 666.5 and 666.51) on July 24, 2002, and that it was issued after a

pre-disciplinary investigative interview on June 6, 2002, with complainant

and his union representative. The MDO stated that the SDO has issued

similar disciplinary actions for employees in similar circumstances.

In summary, the agency found that complainant has not shown that the

allegedly harassing incident(s) he experienced were in any way based

on his race, sex, or reprisal. Moreover, the agency determined that

complainant has not shown that the incident(s) complained of created a

hostile work environment.

The Commission finds that complainant failed to show that the agency's

reasons are pretext for discrimination. Furthermore, complainant failed

to show, by a preponderance of the evidence, that he was discriminated

against on the bases of race, sex, or reprisal.

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

October 19, 2005

__________________

Date