01a00338
03-09-2000
William P. Ferry, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William P. Ferry, )
Complainant, )
)
v. ) Appeal No. 01A00338
) Agency No. 4C-190-1188-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
The Commission finds that the agency's September 16, 1999 decision
finding that the agency did not discriminate against complainant in
retaliation for complainant's prior protected activity was proper.<1>
The claims in the complaint that were at issue in the agency's September
16, 1999 decision are as follows (using the agency's numbering system):
The agency delayed scheduling a Fitness for Duty (FFD) exam, per an
arbitrator's award dated February 18, 1995.
On June 13, 1994, complainant was issued a Notice of Removal for
Misconduct/Falsifying Information on PS Form 2485, Medical Assessment.
On March 17, 1995, complainant received an incomplete physical examination
which resulted in his being categorized as a limited duty carrier and
denied reinstatement.
On March 27, 1995, complainant received a memorandum stating that his
health benefits were terminated effective March 17, 1995, due to being
365 days in a non-pay status.
Complainant did not request a hearing before an EEOC Administrative
Judge.
After reviewing complainant's arguments on appeal and the complete record,
the Commission finds that complainant has failed to show that any of the
agency personnel responsible for the actions at issue in claims 3, 5,
6, and 7, had prior knowledge of complainant's prior protected activity.
Additionally, we find that claims 3 and 7 appear to alleging that the
agency breached an arbitrator's decision. Such a claim of breach
of an arbitrator's decision does not state an independent claim of
discrimination. Regarding claim 3, we note that the Labor Relations
Specialist claimed that the delay in scheduling the FFD was due to the
lack of response from the complainant's attorney. Regarding claim 5,
the Notice of Removal itself provides a detailed explanation of the
false information complainant provided on a Medical Assessment form.
Regarding claim 6, we find that the physician who provided the examination
to complainant asserted that the examination was not incomplete. Regarding
claim 7, the agency asserts in its final decision that by notice dated
April 24, 1995 the agency informed complainant that there had been an
error and that his health benefits coverage would be continued until
July 1995. Complainant has not disputed the agency's claim that it
acknowledged the error to complainant by notice dated April 24, 1995.
Complainant has failed to show that the agency's reasons for its actions
were false or pretextual. Most importantly, complainant failed to show
by a preponderance of the evidence that the actions at issue in this
appeal were motivated in any way by retaliation for complainant's prior
protected activity.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 9, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.