01976534
09-24-1999
Robert L. Cassidy, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Robert L. Cassidy, )
Appellant, )
) Appeal No. 01976534
v. ) Agency No. 4D-250-1096-95
) 4D-250-1157-95
) Hearing No. 120-95-6741X
William J. Henderson, ) 120-96-5442X
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 on July 14, 1995, when he was issued a Letter of Warning (LOW)
for repeatedly placing a letter in a P.O. Box that was not addressed
to the box holder, and when on March 1, 1995, he was denied the right
to higher level assignments. 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 part-time flexible clerk at the
agency's Scottsville, VA Post Office, filed formal EEO complaints with
the agency on September 11, 1995, and on April 19, 1995, respectively,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, appellant requested
a hearing before an Equal Employment Opportunity Commission (EEOC)
Administrative Judge (AJ). Following the hearing, the AJ issued a
Recommended Decision (RD), finding no discrimination.
The AJ concluded that appellant had established a prima facie case
of reprisal with respect to both allegations, noting that appellant
had previously filed complaints in March 1993, March 1994, May
1994, September 1994 and March 1995 and that the Postmaster (PM)
named in the two complaints at issue, indicated that he was aware of
appellant's prior EEO activity. The AJ then concluded that the agency
had articulated legitimate, nondiscriminatory reasons for its actions,
finding that appellant was issued a LOW because no one else at the
facility had misboxed the same piece of mail so many times. Further,
beyond appellant's denial that he had not misboxed the mail on three
consecutive days, appellant provided no evidence to substantiate his
claim that he was not responsible for misboxing the mail, while the PM
testified that he had investigated the matter and spoken to both appellant
and a co-worker about the boxing error. The AJ concluded that appellant
failed to provide evidence to show that the agency's justification for
imposing the LOW was pretext.
With respect to appellant's allegation that he was denied higher
level assignments, the AJ concluded that the agency had demonstrated
that appellant had difficulty supervising employees and completing
administrative tasks. Further, the AJ found that appellant had failed
to demonstrate that the agency's articulated reasons were pretext for
discrimination.
The agency's FAD adopted the AJ's RD. On appeal, appellant restates
arguments previously made at the hearing. The agency responds by
restating the position it took in its FAD, and requests that we affirm
its FAD.
After a careful review of the record, in its entirety, including the
statements submitted on appeal, the Commission find that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We find that the AJ gave full and
thoughtful consideration to the arguments present at the hearing and
rendered the correct decision in this case. Therefore, we discern no
basis upon which to overturn the AJ's finding of no discrimination.
In this regard, the AJ made specific credibility findings which are
entitled to deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses.
See Esquer v. United States v. U.S. Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). Accordingly, it is the
decision of this Commission to AFFIRM the FAD which adopted the AJ's
finding of no discrimination.
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:
September 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations