01970435
05-20-1999
Raymond Stasko, )
Appellant, )
) Appeal No. 01970435
v. ) Agency No. 4C-440-1320-95
) Hearing No. 220-96-5120X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of reprisal (prior EEO activity)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Appellant alleges he was discriminated against,
when on June 23, 1995: (1) his time used on his route was misrepresented;
(2) he was denied equal opportunity for overtime; (3) he was denied Form
3996 and labels for new streets on his route; (4) he was ridiculed in
front of his peers; (5) he was denied access to the grievance process. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a Letter Carrier, PS-5, at the agency's
Brecksville/Broadview Branch, filed a formal EEO complaint with the agency
on September 7, 1995, alleging that the agency had discriminated against
him as referenced above. Appellant identified the Manager of Customer
Services, the District Manager, and the then Postmaster General of the
Postal Service as the agency officials who discriminated against him.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a
Recommended Decision (RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
discrimination because he failed to establish that either the District
Manager or the then Postmaster General took any adverse action against
him. The AJ noted that in making his allegations of discrimination,
appellant asserted that �management� retaliated against him, but did
not attribute any specific act to any specific management official.
Furthermore, the AJ found that appellant failed to show that either
the District Manager or the then Postmaster General knew or should have
know of appellant's prior EEO activity at the time the adverse actions
occurred. Finally, the AJ found that appellant failed to establish that
the Manager of Customer Services was aware of his prior EEO activity when
the adverse actions occurred. Indeed, the Manager of Customer Services
denied that she had retaliated against appellant based on her lack of
knowledge or involvement in any of appellant's prior EEO complaints.
In sum, the AJ found that appellant was not discriminated against on
the bases of reprisal.
On September 17, 1996, the agency issued a FAD adopting the AJ's RD.
It is from this decision that appellant now appeals.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We further find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the Manager of Customer Services testified that the
agency was currently in the process of adjusting appellant's route, and
that appellant will be receiving a two hour adjustment on his route.
Furthermore, with respect to his allegation regarding the Form 3996,
the Manager testified that appellant simply needs to request the form.
The Manager noted that appellant's overtime ranks at or above the norm
for the branch, and denied that appellant was belittled in front of
his peers. On appeal, appellant argues that the agency failed to comply
with regulations regarding the EEO process, and also references prior
EEO complaints filed against the agency. We note that appellant failed
to present evidence that any of the agency's actions were in retaliation
for appellant's prior EEO activity. Therefore, after a careful review of
the record, including appellant's contentions on appeal, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 (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 the 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 the 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 the 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. 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 (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:
5/20/99
DATE Ronnie Blumenthal, Director
Office of Federal Operations