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.