01973969
03-10-1999
Donald O. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.
Donald O. Williams v. United States Postal Service
01973969
March 10, 1999
Donald O. Williams, )
Appellant, )
) Appeal No. 01973969
v. ) Agency No. 2-N-0009-88
) EEOC No. 220-96-5364X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which he claimed
discrimination on the basis of reprisal (prior EEO activity) when his
casual carrier appointment was terminated and he was denied reinstatement
to a carrier position. On March 21, 1988, the parties entered into a
settlement agreement whereby appellant voluntarily withdrew his complaint
in exchange for favorable consideration for a career appointment with the
agency after one year of satisfactory employment with the private sector.
In March 1994, the agency commenced hiring, and appellant's request for
reinstatement was considered, but he was not hired.
On November 18, 1994, appellant initiated contact with an EEO Counselor
alleging that the agency breached the settlement agreement when it
failed to reinstate him. In a final decision dated February 3, 1995,
the agency extended to appellant a career Mailhandler position, and also
told appellant that he could accept the position and still pursue the
alleged breach of the settlement agreement from the point at which he was
denied a position (March 1994) until the date of hiring. Appellant was
reinstated to a career Mailhandler position effective April 1, 1995.
On April 22, 1996, the Office of Federal Operations held that the agency
had breached the 1988 settlement agreement in March 1994, and ordered
the agency to reinstate the complaint at the point processing ceased.
The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission administrative judge
(AJ). A hearing was conducted on December 21, 1997.
On December 21, 1997, the AJ issued a recommended decision (RD) finding
no discrimination. The AJ concluded that appellant failed to establish
a prima facie case in that he failed to establish that the agency knew
or should have know of appellant's prior EEO activity while employed
at the West Virginia facility when it terminated him from his casual
carrier position at the Cincinnati facility in 1987. Indeed, the AJ
found that there was no record of appellant's prior EEO activity in his
official personnel file. Furthermore, the record reveals that appellant
was terminated from his casual carrier position in Cincinnati before the
Cincinnati facility had received appellant's prior EEO case file from
the West Virginia facility. Finally, the AJ found that appellant had
failed to establish that appellant had requested reinstatement at the
time of his termination. Thus, the AJ found, there could be no denial
of reinstatement when appellant had not even requested reinstatement.
We find, as did the AJ, that appellant was terminated from his casual
carrier position based upon a review of appellant's official personnel
file which indicated he had been issued discipline while employed with
the West Virginia facility. However, as stated above, appellant failed
to prove that there was evidence of his prior EEO activity in his official
personnel file.
On March 13, 1997, the agency issued a final decision adopting the AJ's
finding of no discrimination. 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 appropriate regulations, policies and laws.
The Commission has reviewed the parties' statements on appeal and discerns
no basis in which to disturb the AJ's finding of no discrimination. On
appeal, appellant argues that the issue before the AJ was the breach
of the settlement agreement, and not the termination and denial of
reinstatement. However, we find that the proper issue was before the
AJ, and appellant failed to present sufficient evidence proving that
the agency's reasons for its actions were pretext for discrimination.
Accordingly, it is the decision of the equal Employment Opportunity
Commission to AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. �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 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. 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:
March 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations