William C. Bassett, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A05419 (E.E.O.C. Sep. 18, 2002)

01A05419

09-18-2002

William C. Bassett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


William C. Bassett v. United States Postal Service

01A05419

09-18-02

.

William C. Bassett,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A05419

Agency No. 4H-330-0263-98

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final decision in the above-entitled matter.

Complainant contends that he was discriminated against based on his

race (White), sex (male), age (DOB: 9/29/34), disability (right leg dog

bite), when on February 8, 1998, and March 12, 1998: (1) his scheduled

starting time was changed; (2) he failed to be given rotating off-days;

(3) he was not allowed to go home upon finishing his work; (4) he was

made to sit in front of the supervisor's desk to answer the telephone;

(5) he was questioned by his supervisor following his visit to the doctor;

(6) he was required to work outside of his medical restrictions; (7)

female coworkers were given smaller work loads and were not harassed;

and (8) he and his representative was given undesirable work to perform

after he filed a complaint in this case.<1> At the conclusion of the

investigation, complainant received a copy of the investigative file and

was notified of his right to request a hearing or a final agency decision.

Complainant failed to make an election, and as a result, a final agency

decision was issued.

The FAD found that complainant failed to show that he was subjected to

a hostile work environment. The FAD found the record was devoid of any

evidence that discriminatory harassment occurred. The FAD maintained

that the facts did not show that the conduct complainant complained of

(items 4 and 5), was sufficiently severe or pervasive as to create a

hostile work environment. With respect to complainant's other items,

the FAD maintained that the agency provided legitimate non-discriminatory

reasons for its actions, namely, that complainant was given a later

starting time because he was placed on P.M. telephone duties due to

his inability to stand. It was noted that the start time for injured

employees was based on whether there was work available for them within

their limitations and the type of work being performed. The FAD indicated

complainant was placed on telephone duty because his medical documentation

indicated that he was doing too much walking. The FAD also found that

the employees complainant compared himself to were not on light or

limited duty or had medical limitations different from his limitations.

Moreover, the FAD found that as a Part-Time Flexible Carrier, complainant

was not entitled to rotating days off.

The FAD also found that complainant failed to establish a prima facie

case of disability discrimination because complainant failed to show

that his impairment had any effect on any major life activities.

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 agency's final

decision. We agree that the record does not support complainant's

contentions that he was discriminated against on the bases of his race,

sex, age or disability. We agree that the record does not show that

complainant was subjected to a hostile work environment. We find

that complainant's supervisor asking him about the progress of his

recovery is not sufficiently severe or pervasive to establish a hostile

work environment. Further, we find that as a result of his medical

restrictions, (inability to stand and walk for an extended period),

complainant was given a reasonable accommodation when he was assigned

telephone duty.<2> We find there is no evidence that complainant was

made to work outside of his restrictions. Further, the record also does

not demonstrate that complainant was retaliated against with regard to

his work assignments or work location since the telephones apparently

were outside of the supervisor's office. Complainant also failed to

show that other employees were allowed to leave early or were treated

more favorably than complainant. Therefore, the preponderance of the

evidence of record does not establish that discrimination occurred.

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

____09-18-02______________

Date

1 In EEOC Appeal No. 01986893, the Commission

found that the agency had improperly dismissed two of complainant's

allegations. The Commission held that complainant's complaint stated

claims of discriminatory working conditions, a failure to provide

reasonable accommodation, and retaliatory assignment.

2 We assume for the purpose of this analysis, that complainant is a

qualified individual with a disability.