01970085
01-29-1999
Anthony Cunningham, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic) Agency.
Anthony Cunningham v. United States Postal Service
01970085
January 29, 1999
Anthony Cunningham, )
Appellant, )
)
v. ) Appeal No. 01970085
) Agency No. 4C-440-1153-95
William J. Henderson, ) Hearing No. 220-95-5440X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic) )
Agency. )
_______________________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision
concerning his equal employment opportunity (EEO) complaint, which alleged
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. Appellant alleged that he was
discriminated against based on race (Black), sex (male), and/or reprisal
(prior EEO activity) when his request for reinstatement was denied on
or about December 29, 1994. The appeal is accepted by the Commission
in accordance with the provisions of EEOC Order No. 960.001.
The record reveals appellant filed this formal EEO complaint with the
agency on April 28, 1995, alleging that the agency had discriminated
against him as referenced above. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant requested an administrative hearing before an EEOC
administrative judge (AJ).
The hearing was conducted on February 16, 1996, and the AJ issued his
Recommended Decision (RD) on July 25, 1996. The AJ found that appellant
failed to establish a prima facie case of race or sex discrimination,
concluding that appellant failed to set forth facts from which an
inference of discrimination would arise since he failed to introduce
any credible evidence of a similarly-situated employee not within his
protected group who was treated more favorably. However, the AJ did find
that appellant established a prima facie case of reprisal. He further
found that the agency articulated legitimate, nondiscriminatory reasons
for not reinstating appellant. Specifically, the Senior Personnel
Specialist testified that appellant's request for reinstatement was
denied due to appellant's inability to be punctual and/or reliable, and
because of the six disciplinary actions previously instituted against him.
The record also established that appellant's disciplinary record included
two notices of removal that were issued to him, but were subsequently
reduced to warnings through the grievance procedure. The record also
revealed that appellant had been disciplined for the following actions:
conduct unbecoming of a postal employee; absence without official leave
(AWOL); failure to follow instructions; failure to maintain a regular
work schedule; failure to protect postal property; and willful delay
of the mail. These disciplinary actions were issued beginning 1989 and
continued through 1993. Finally, the AJ found that appellant failed to
establish that the agency's reasons for not reinstating him were pretext
for discrimination.
On September 3, 1996, the agency issued a final decision adopting the
AJ's decision finding no discrimination. It is from this decision that
appellant now appeals.
The Commission has reviewed the record, consisting of the investigative
report and exhibits, the hearing transcript, the hearing exhibits, the RD,
and the FAD. The Commission concludes that the AJ accurately set forth
the facts giving rise to the complaint and the law applicable to the case.
The Commission further concludes that the AJ correctly determined that
appellant failed to establish, by a preponderance of the evidence,
that the agency discriminated against him as alleged in his complaint.
Appellant has raised no new contentions on appeal. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Jan 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations