05A60691
08-09-2006
Marion G. Ferguson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marion G. Ferguson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A60691
Appeal No. 01A44424
Hearing Nos. 250A18211X, 250-2001-08091X, 250-2002-08092X, 250-2002-0813X
Agency Nos. 4G-720-0112-97, 4G-720-1222-96, 4G-720-0215-97
DENIAL
Complainant timely requested reconsideration of the decision in Marion G.
Ferguson v. United States Postal Service, EEOC Appeal No. 01A44424 (April
7, 2006). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The record reveals that complainant filed three separate complaints
alleging discrimination. The cases were consolidated for hearing before an
Administrative Judge (AJ). Complainant's first claim related primarily to
his failure to receive what he believed was the appropriate recognition for
certain achievements. In his second claim, complainant alleged nine acts
of harassment and retaliation, which primarily involved perceived criticism
of his work performance, and in the third claim, complainant alleged
thirteen acts of harassment and retaliation for an assortment of perceived
wrongs, including non-selection for job assignments, disparaging comments
about his performance, and a mandatory referral for medical treatment.
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ found that complainant was not a credible witness. The agency
issued a Notice of Final Action fully implementing the AJ's decision.
In the appellate decision, the Commission affirmed the agency's final
action and found that the AJ correctly determined that complainant failed
to establish a nexus between his protected EEO activity and the alleged
adverse actions by the agency. The Commission concurred with the AJ's
finding that complainant failed to proffer direct or other evidence to
establish that the adverse actions complained of, such as, increased
scrutiny of his postal route, failure to be promoted or detailed, and the
investigation by the threat assessment team were motivated by retaliatory
animus. The Commission found that the AJ's conclusion that complainant
failed to establish that he was retaliated against was supported by
substantial evidence in the record.
In his request for reconsideration complainant argues that the AJ issued a
bench decision in this case without the use of a transcript. He indicates
that there was a large gap of time from when his witnesses testified to
when the agency's witnesses testified and that those witnesses that
testified later were found more credible. Complainant then restates
arguments previously made at the hearing.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the request.
We find complainant has failed to show that the appellate decision involved
a clearly erroneous interpretation of material fact or law; or that the
decision will have a substantial impact on the policies, practices, or
operations of the agency. Further, with respect to complainant's
contentions on appeal, we find that complainant has offered no evidence
that the AJ was mistaken in any way with respect to his decision or that
the AJ's credibility findings were in any way flawed. Accordingly, the
decision in EEOC Appeal No. 01A44424 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____8-09-06_____________
Date