01971568
03-22-1999
Jack J. Lombardo, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Area), Agency.
Jack J. Lombardo v. United States Postal Service
01971568
March 22, 1999
Jack J. Lombardo, )
Appellant, )
) Appeal No. 1971568
v. ) Agency No. 1I-642-1047-94
) Hearing No. 280-96-4038X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Great Lakes/Mid-West Area), )
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: (1) on or about April 28, 1994 he was denied his scheduled annual
leave;<1> and (2) on or about July 26, 1994, he was issued a letter of
warning for poor work performance. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
Prior to the instant complaint, appellant had filed several complaints.
Four of the complaints were settled on September 24, 1993. The settlement
agreement settled four EEOC complaints filed by appellant on March
3, 1991, February 10, 1992, April 22, 1992 and December 14, 1992,
respectively. The settlement agreement was subsequently modified by
agreement of the parties on November 3, 1993, and is related to the
action at issue because it led to appellant being detailed to training
in Quality Improvement Management/Control.
At the time the instant complaint arose appellant was assigned to the
Quality Improvement unit in the agency's Kansas City Bulk mail Center
where he was given certain assignments. On July 26, 1994, appellant was
issued a Letter of Warning (LOW) signed by the Manager In Plant Support
(Responsible Official, RO). The LOW stated the following:
"This official disciplinary [LOW] is being issued to you for the following
reasons: Charge - poor work performance. Specifically on April 11,
1994, you were assigned a color code for the small parcel bundle sorter
(SPBS) project with a due date of April 15, 1994. This project entailed
developing a Standard Operating Procedure (SOP) for the facility.
Nothing was received from you until April 28, 1994. After reviewing
the report, it was found to be unacceptable and it was returned to you
on June 8, 1994, requesting that the errors be corrected and that the
project be rewritten and returned by June 14, 1994."
The LOW further states that on June 13, 1994, appellant submitted
another incomplete and incorrect SOP. This copy was returned
to appellant for correction on June 22, 1994. On June 28, 1994,
appellant submitted another version of the SOP and this plan was
also unsatisfactory. The letter goes on to site certain regulatory
violations, and specifically charges appellant with a failure to discharge
assigned duties conscientiously and effectively. Believing he was a
victim of discrimination, appellant filed a formal complaint alleging
discrimination as stated above. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant received a copy of the investigative report(s) and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant established a prima facie case of reprisal
discrimination because appellant had engaged in a Title VII proceeding
and his most recent Title VII activity proceeded the issuance of the
LOW by less than a year. Moreover, the RO testified that shortly after
appellant commenced his work in the Quality Improvement unit, she became
aware that he had been assigned to her as a result of an EEO settlement.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, as set forth in the LOW. The
AJ acknowledged and thoroughly addressed appellant's five contentions in
his pretext argument. Thereafter, she concluded that appellant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful retaliation. The agency's FAD adopted
the AJ's RD.
On appeal, appellant restates arguments previously made at the hearing
and submits what he considers to be additional persuasive evidence in
support of his complaint. 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, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We are not persuaded by appellant's
evidence on appeal, and find this evidence does not show that the
agency's actions were in retaliation for appellant's prior EEO activity.
Therefore, we discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record. ,
after a careful review of the record, including appellant's contentions on
appeal, the agency's response, 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:
March 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 During the hearing, appellant withdrew his complaint regarding
scheduled leave. Therefore, this decision will only address the letter
of warning.