0120090522
07-28-2010
John Mozina, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
John Mozina,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120090522
Agency No. 4C-150-0016-08
DECISION
Complainant filed an appeal from the Agency's September 29, 2008, final
decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �2000e et seq.
For the following reasons, the Commission AFFIRMS the Agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency's Plum Branch Station facility in
Pittsburgh, Pennsylvania. On March 18, 2008, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the
basis of race (White) when:
1. In October 2006, and on at least one subsequent date,
Complainant's Supervisor (S1) provided false information regarding
Complainant's on the job injury;
2. In June 2006, Complainant's leave request was denied;
3. In June 2006, Complainant was not permitted to bring his
Mother-In-Laws "Hold Mail" home to his spouse;
4. On November 27, 2007, and December 20, 2007, Management
wanted Complainant to perform duties that were not within his medical
restrictions;
5. On December 3 -15, 2007, Complainant was not afforded the same
assignment opportunities as a co-worker;
6. In December 2007, Complainant did not receive a full eight hours
of work on two days;
7. On December 21, 2007, Complainant was subjected to
pre-disciplinary interview; and
8. On April 16, 2008, Complainant was admonished by the Supervisor
for talking.
By letter dated April 24, 2008, the Agency accepted claims (4), (5)
and (6) for investigation.1 Claims (1), (2) and (3) were dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
The Agency found that Complainant sought EEO counseling on December 7,
2007, but the incidents described in claim (1), (2), and (3) occurred
in 2006, which is beyond the 45-day time limit for presenting claims
for EEO counseling. Accordingly, the Agency dismissed the first three
claims of Complainant's complaint. Partial Acceptance/Partial Dismissal
Of Formal EEO Complaint, April 24, 2008, at 1.
With respect to claims (7) and (8), the Agency dismissed these claims
pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds that the events
described in these claims fails to state a claim. Specifically,
the Agency noted that a pre-disciplinary interview and a one-time
admonishment, such as that described in claims (7) and (8), are not enough
incidents of harassment, even if they occurred as alleged, to render
Complainant aggrieved, since they are not either severe or pervasive
enough to alter the terms and conditions of Complainant's employment.
Accordingly, the Agency dismissed claims (7) and (8). Id.
At the conclusion of the investigation of claims (4), (5) and (6), the
Agency provided Complainant with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). When Complainant did not request a hearing within the time
frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant suffered from a
non-work related injury to his back that prevented him from lifting
more than 10 pounds, and further restricted Complainant from performing
repetitive twisting, and from prolonged sitting or standing. On November
27, 2007, S1, Complainant's supervisor, provided Complainant with a cart
in which to carry the mail for his route, so that Complainant did not have
to carry a satchel. The Agency noted that S2, another Supervisor, also
provided a statement dated November 29, 2007, indicating that Complainant
was granted permission to not carry a satchel while performing a walking
route. S1 further stated that she prepared to provide Complainant
assistance with lifting the cart she had given to Complainant.
The Agency noted that S1 and S2 did not receive medical documentation
from Complainant as of November 27, 2007, regarding his restrictions,
but that Complainant was not required to carry a mail satchel while
performing a walking route to deliver the mail. Agency Final Decision,
(Ag Decision) September 29, 2008, at 5, 6.
In his complaint, Complainant stated that he further exacerbated his back
injury on November 29, 2007, by stepping into a hole that had been covered
with leaves, when he returned to his vehicle after performing the walking
portion of his assigned route. Complainant was then restricted by his
Chiropractor from walking to deliver the mail when he returned from sick
leave on December 17, 2007 through December 27, 2007. Counselor's Report
at 12.
The Agency found that Complainant states his medical restrictions
prohibited him from carrying a mail satchel and the evidence showed
that that neither S1 nor S2 required that he carry a mail satchel or
otherwise violate Complainant's known medical restrictions on November
27, 2007 or November 29, 2007. S1 provided a cart for the mail to be
delivered and S2 granted Complainant permission to not carry the required
mail satchel. Accordingly, the Agency did not find that Complainant's
medical restrictions were violated by S1 or S2. Ag Decision, at 5, 6.
The Agency considered Complainant's claim that E1, another employee,
not in Complainant's protected racial group, who also had medical
restrictions, but whom Complainant believed received preferential
treatment. The Agency found the evidence did not support Complainant's
claim of discrimination based on race. Specifically, the Agency noted
that E1 and Complainant were not similarly situated. E1 suffered
from a work-related injury and was thus provided by the agency with a
limited duty position. Complainant's injury was not work-related and so,
Complainant was provided with light duty at his request. Employees are
not, as indicated by the statement of S1, guaranteed 8 hours of work on
light duty, unlike employees in limited duty positions. Ag Decision at
7; 11. The Agency found the evidence did not show that E1 was treated
better than Complainant was treated under similar circumstances. Id.
The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. Id. at 11,
On appeal, Complainant recounts the incidents described in his complaints
and explains that he would have complained earlier than he did, about
discrimination from S1 that began when he first arrived at Plum Station,
had he known what to do. Complainant Statement on Appeal, November 2,
2008 at 1.
On appeal, the Agency states again that Complainant has not established a
prima facie case of race discrimination and that the Agency has provided
legitimate, non-discriminatory reasons for its actions that Complainant
has not shown were a pretext. Agency's Brief on Appeal, December 17,
2008, at 1, 2.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
We concur with the Agency that claims (1), (2), and (3) were properly
dismissed for untimely EEO Counselor contact. We find that Complainant
has not provided an adequate explanation for failing to contact an EEO
Counselor within the required time. We therefore find these claims were
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
With respect to claims (7) and (8), we find the Agency properly found
that Complainant was not aggrieved by the events described in these
claims. We find nothing in the record indicates that Complainant was
actually subjected to any discipline as a result of the pre-disciplinary
interview and that the instructions to stop talking on a single occasion
are within the ordinary gamut of supervisory actions that without more,
do not rise to the level of harassment. We find the Agency properly
dismissed claims (7) and (8) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
Turning to claims (4), (5), and (6), we find the evidence supports
the Agency's Final Decision. Specifically, we find no evidence that
Complainant was restricted from walking until December 17, 2007. Record
of Investigation (ROI) Exhibit 7. We find Complainant himself describes
his medical restrictions as lifting no more than 10 pounds, no repetitive
twisting and no prolonged sitting or standing; not to carry a satchel.
Investigative Affidavit (Complainant) (Complainant Aff), May 28, 2008,
at 2. We therefore concur with the Agency that discrimination on the
basis of race did not occur as alleged in claim (4).
We further concur with the agency that Complainant was not treated less
favorably than E1. We find the evidence does not show that Complainant
and E1 were similarly situated in all relevant respects. We find
that Complainant does not dispute that E1 was injured while working
on September 15, 2007 while Complainant states that he was injured
on November 26, 2007 while he was not at work. Ag. Decision at 7.
We find nothing in the record indicates that Complainant and E1 had the
same working restrictions from November 27, 2007 through December 27,
2007, and find that Complainant's restrictions changed during that time.
Complainant Aff, at 2, 3. We do not find that E1 was similarly situated
to Complainant for purposes of Title VII and that Complainant has not
established a prima facie case of discrimination based on race.
CONCLUSION
We AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 28, 2010
__________________
Date
1 In its Final Decision, the Agency identified the incidents we have
enumerated as claims (5) (not given the same assignment opportunities
as a co-worker) and (6) (not given 8 hours of work on two occasions)
as a single claim.
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2
0120090522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090522