01982890
01-29-1999
Gregory K. Feick, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Gregory K. Feick v. United States Postal Service
01982890
January 29, 1999
Gregory K. Feick, )
Appellant, )
)
v. ) Appeal No. 01982890
) Agency No. 4F-950-1151-94
William J. Henderson, ) Hearing No. 370-96-X2629
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
___________________________________)
DECISION
On February 24, 1998, Gregory K. Feick (appellant) timely appealed
the final decision of the United States Postal Service (agency), dated
February 10, 1998, which concluded he had not been discriminated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In his complaint, appellant alleged that agency
officials had unlawfully retaliated against him for engaging in prior
EEO activity when he was issued a Notice of Removal on April 26, 1993.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
At the time this matter arose, appellant was employed by the agency
at its Westgate Station in San Jose, California, as a City Carrier.
He had worked at the Westgate facility since 1976. The record reflects
that he had filed an EEO complaint in June 1992 concerning a seven-day
suspension he received for being absent without official leave (AWOL).
This complaint went to hearing, and an EEOC administrative judge issued a
finding of no discrimination in April 1993. It is this prior EEO activity
for which appellant alleged he was retaliated in the instant complaint.
It is undisputed that the agency officials involved in issuing appellant
the Notice of Removal were aware of this prior EEO complaint.
The subject Notice of Removal was issued to appellant on April 26,
1993, for "Irregular and Unsatisfactory Attendance/AWOL and Unacceptable
Conduct." The Notice enumerated eleven full or partial days on which
appellant was absent between December 1992 and April 1993. In addition,
appellant was charged with yelling at the Station Manager on April 23,
1993, calling him a "liar," and threatening to spray-paint his car.
It was noted that appellant had engaged in a similar outburst against a
supervisor in January 1993. The Notice also indicated that appellant's
past disciplinary record was considered, including a letter of warning and
three prior suspensions for attendance problems and driving violations.
The record reflects that several other employees, without prior EEO
activity, received similar discipline from the agency. Appellant did
not deny his absences or outbursts on the workroom floor. Rather, he
attempted to offer excuses for his conduct and asserted that the agency
exaggerated the incidents.
On June 23, 1994, appellant filed a formal EEO complaint with the
agency, 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 Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On December 17, 1997, the AJ issued a decision without a hearing, pursuant
to 29 C.F.R. �1614.109(e), concluding appellant had failed to establish
that unlawful retaliation occurred in this matter. On February 10, 1998,
the agency adopted the findings and conclusions of the AJ and issued a
final decision finding no retaliation. It is from this decision that
appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns no
basis to disturb the AJ's finding of no discrimination. Nothing proffered
by appellant on appeal differs significantly from the arguments raised
before, and given full consideration by, the AJ. Accordingly, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final decision which adopted the AJ's finding of no retaliation.
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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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