01a03800
03-29-2001
Jose A. Lugo-Morciglio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jose A. Lugo-Morciglio v. United States Postal Service
01A03800
03-29-01
.
Jose A. Lugo-Morciglio,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03800
Agency Nos. 1G-797-0045-98; -0012-97; -0024-98
Hearing No. 360-98-8636X
DECISION
On April 24, 2000, Jose A. Lugo-Morciglio (hereinafter referred to as
complainant) filed a timely appeal from the March 16, 2000, final action
of the United States Postal Service (hereinafter referred to as the
agency) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's final action is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of national origin (Puerto Rico) and reprisal for prior
EEO activity pursuant to Title VII when he was issued a proposed letter
of warning in December 1996, and letters of warning in December 1997
and July 1998.
Following investigations of his complaints, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On February 23, 2000,
the AJ issued a decision without a hearing finding that the agency did
not discriminate against complainant. The agency agreed with the AJ.
Complainant has filed the instant appeal.
At the time of these events, complainant was a supervisor at an agency
facility in San Antonio, Texas. The AJ found that complainant established
prima facie cases of discrimination and reprisal and that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
as follow:
In December 1996, complainant was issued a proposed letter of warning
(LOW) (reduced to an official discussion) when he took unscheduled leave
after his leave request had been denied for that day, and he was not
forthcoming about the reason for his absence.
In December 1997, complainant was issued a LOW when two flats of mail
missed the dispatch. The AJ found that complainant failed to show that
other supervisors not in his protected classes were not issued discipline
in the same situation.
In July 1998, complainant was issued a LOW in lieu of suspension when
he delayed for four months informing management of an employee's claim
of sexual harassment against another manager. Complainant contended he
was unaware of the agency's policy and rules regarding claims of sexual
harassment, but the AJ held that, as a supervisor, he should have been.
In his appeal statement, complainant contended that unidentified others
were not punished, that the alleged events did not occur, that it was
not his responsibility to dispatch the mail, and that he reported the
employee's claim of sexual harassment. The Commission finds that none
of the arguments made by complainant are supported by the evidence and
therefore fail to demonstrate that the agency's reasons were not the true
reasons or that they were taken because of prohibited considerations.
After a careful review of the record, the Commission finds that the
decision of the AJ accurately states the facts and correctly applies
the pertinent principles of law. Accordingly, it is the decision of
the Commission to AFFIRM the agency's final action in this matter.<1>
CONCLUSION
Accordingly, the agency's final action was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__03-29-01________________
Date
1After review of the record, the Commission also finds that the AJ's
issuance of a decision without a hearing was appropriate.