01A22991_r
09-05-2002
Richard M. Popovitch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard M. Popovitch v. United States Postal Service
01A22991
September 5, 2002
.
Richard M. Popovitch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22991
Agency No. 4-C-170-0039-00
Hearing No. 170-A1-8078X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's April 2, 2002 final order in the above-captioned
matter.
In his complaint, complainant, a City Letter Carrier at the agency's
Wilkes-Barre, Pennsylvania postal facility (Annex Facility), claimed
that the agency subjected him to unlawful discrimination and harassment,
on the bases of disability(left thoracic outlet syndrome) and in reprisal
for prior protected EEO activity as evidenced by the following incidents:
On February 1, 2000, complainant's supervisor asked him if he felt
guilty about being in a limited duty assignment;
On February 4, 2000, complainant's supervisor told complainant that
he did not believe him to be disabled, and also accused complainant of
not working;
On March 21, 2000, the agency notified complainant that his starting
time would be changed from 0530 hours to 0800 hours; and
On April 18, 2000, complainant was told that he had to case mail
according to Postal Service standards.
The agency investigated the complaint, and transferred the case to an
EEOC Administrative Judge (AJ), who conducted a hearing and rendered
a decision on March 1, 2002, finding no discrimination. Specifically,
in considering complainant's harassment claim, the AJ determined that the
complainant failed to show that the supervisor's actions, as described by
complainant, were sufficiently severe or pervasive to constitute unlawful
harassment. Regarding complainant's individual claims of discrimination,
the AJ determined that even assuming arguendo that complainant established
prima facie cases of disability and reprisal, the agency articulated
legitimate non-discriminatory reasons which complainant failed to show
were pretextual. The agency's final order implemented the AJ's decision.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Commission AFFIRMS the agency's
final action because the AJ'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
September 5, 2002
__________________
Date