01970543
02-03-1999
George D. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.
George D. Williams, )
Appellant, )
)
v. ) Appeal No. 01970543
) Agency No. 1D-281-1046-95
William J. Henderson, ) EEOC No. 140-96-8078X
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 alleging discrimination on the basis
of reprisal (prior EEO activity) when, on March 9, 1995, while keying, his
Supervisor pushed him on his right shoulder and instructed him to work his
scheduled day off (March 12, 1995). Following the agency's investigation,
appellant requested a hearing before an EEOC administrative judge (AJ).
On September 6, 1996, the AJ issued a Recommended Decision (RD) without
a hearing pursuant to 29 C.F.R. �1614.109(e), finding no discrimination.
In her RD, the AJ found that although appellant had established a prima
facie case of discrimination based on reprisal, the agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the AJ found that the agency persuasively demonstrated that overtime was
needed on March 12 in order to handle the mail volume. Furthermore, the
supervisor testified that appellant, as well as other similarly-situated
individuals had to work on that date. With respect to the allegation
regarding physical contact, the agency denied that the contact occurred.
The AJ also found that appellant failed to establish pretext on the
part of the agency. Although appellant presented testimony from two
individuals who stated they witnessed the supervisor touch appellant,
the AJ found that appellant failed to demonstrate that the touching
was in any way related to appellant's prior EEO activity. Furthermore,
appellant failed to present persuasive evidence to refute the agency's
reasons or otherwise support a finding of pretext.
On September 26, 1996, the agency issued a final decision adopting the
AJ's recommended decision. 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 that 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 findings of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision.
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:
____2/3/99_________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations