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