0120090769
05-07-2009
Anthony S. Nelson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony S. Nelson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090769
Hearing No. 570-2007-00561X
Agency No. 4K-220-0106-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from a final agency decision (FAD) dated November 5, 2008,
concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against him on the
bases of age (51) and reprisal for prior protected EEO activity when
he was issued letters of warning dated August 9, 2006 and November 11,
2006, for unsatisfactory performance/failure to follow instructions.
Following an investigation, complainant requested a hearing. The AJ
dismissed complainant's complaint with prejudice for failure to prosecute.
The AJ recounted that complainant did not [timely] respond to the agency's
interrogatories, despite the agency providing them to complainant, it
sending him a reminder letter that they were overdue, and the AJ granting
the agency's order to compel a response. Further, the AJ found that
complainant did not reply to the above agency motions to compel and for
sanctions, nor to its motions for summary judgment and dismissal for
failure to prosecute.
The agency did not dismiss the complaint. Instead, it issued a decision
finding no discrimination. We find that the agency acted properly in not
dismissing the complaint. Complainant was contumacious in delaying his
response to the interrogatories beyond the time limit in the AJ's order
granting the agency's motion to compel, and he should have responded
long before the motion was granted. However, he was not obligated to
respond to the agency's various motions, albeit this was poor advocacy
on his part. Given that complainant's only contumacious conduct was
not timely responding the interrogatories, we find that the agency acted
within its discretion to not to dismiss the complaint following the AJ's
dismissal. See Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 12, 2000).
We now turn to the issue of discrimination. The agency explained that
it issued the letters of warning because complainant repeatedly failed to
process daily sufficient amounts of business reply and postage due mail,
despite the demonstrated ability to do so, and instructions and warnings
to do so.
Complainant previously countered that there was insufficient personnel
and he worked the best he could. He makes no argument on appeal.
The agency indicated that complainant worked too slow, and had the ability
to timely process the mail. Complainant has not shown that the agency's
expectations were unreasonable or discriminatory. Nor has he shown that
he was disparately treated.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 7, 2009
__________________
Date
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0120090769
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090769