01970715
02-22-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
William C. Murrell v. United States Postal Service
01970715
February 22, 1999
William C. Murrell,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Areas),
Agency.
Appeal No. 01970715
Agency No. 1C-431-1030-95
Hearing No. 220-95-5394X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that he was discriminated against on the
basis of reprisal (prior EEO activity) when: (1) on November 17, 1994,
he was issued a Letter of Warning for Unsatisfactory Performance; (2)
on January 18, 1995, his supervisor and manager told the group leader to
find him and tell him to return to his route; whereas, on January 19,
1995 and January 23, 1995, other T-3 Custodians were allowed to be off
their route assignments; and (3) on January 11, 1995 he was continually
checked by his supervisor to see if he was working his assigned area,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The Commission hereby accepts the appeal
in accordance with EEOC Order No. 960.001. For the following reasons,
the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was employed as
a Labor Custodian in Maintenance Operations at the agency's Processing and
Distribution Center in Columbus, Ohio. Believing that he was the victim
of discrimination, appellant sought EEO counseling and, thereafter,
filed a formal EEO complaint. The agency accepted the complaint for
investigation and complied with all of our procedural and regulatory
prerequisites. Subsequently, appellant requested a hearing before an
EEOC Administrative Judge (AJ). Pursuant to the agency's request, the
AJ decided the case on the record and issued a recommended decision
finding no discrimination. See 29 C.F.R. � 1614.109(e)(3). In his
RD, the AJ concluded that appellant failed to establish a prima facie
case of reprisal discrimination with respect to all three allegations.
Specifically, the AJ reasoned that appellant either failed to establish
that the responsible agency official was aware of his prior EEO activity,
failed to present credible evidence to show that he was aggrieved
or failed to present a similarly situated comparative employee that
was treated more favorably. Thereafter, the agency adopted the RD and
issued a FAD, dated May 21, 1996, finding no discrimination. It is from
this agency decision that appellant now appeals. No contentions were
submitted on appeal.
With respect to allegation 1, the investigative record reveals that
appellant failed to present evidence that his supervisor was aware of, or
should have been aware of his prior EEO activity. Concerning allegations
2 and 3, the appellant failed to show that he was subjected to an
adverse action. Moreover, the agency presented unrebutted evidence
that all employees were monitored to ensure that they complied with
their duties. Finally, appellant failed to show that others who were
away from their workstations were treated more favorably.
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's RD sets forth the relevant facts, and properly analyzes
the appropriate regulations, policies and laws. The Commission discerns
no basis to disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 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. � l6l4.604(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. 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:
February 22, 1999
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations