01A24673_r
09-29-2003
James R. Hamrick, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
James R. Hamrick v. United States Postal Service
01A24673
September 29, 2003
.
James R. Hamrick,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A24673
Agency No. 4F-920-0202-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as a custodian at the agency's Riverside, California facility.
Complainant sought counseling on August 13, 1998, and filed a formal
complaint on October 22, 1998. In his formal complaint, complainant
alleged that he was discriminated against on the bases of disability and
age (D.O.B. January 16, 1937) when on July 1, 1998, after contacting his
representative in Congress regarding enforcement of a settlement agreement
and a downgrade of his position, he received a copy of letter drafted
by the agency in response to a congressional inquiry that contained
"blatant fabrications" and lies.
In a final decision dated February 7, 2000, the agency determined that
complainant's claim was a mixed case complaint. In its final decision,
the agency found no discrimination. Complainant appealed this decision to
the Commission, which vacated the final agency decision and remanded it
to the agency for a supplemental investigation and continued processing
of the complaint as ordered. Hamrick v. United States Postal Service,
EEOC Appeal No. 01A02775 (January 30, 2002).<1>
In a final decision that is the subject of the instant appeal, the agency
found no discrimination.
Upon review of the matter, we find that the agency properly found that
complainant failed to present any evidence from which a fact-finder
could conclude that the agency's response to the congressional inquiry
was motivated by discriminatory animus against complainant's age
or disability.<2> Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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
_September 29, 2003_________________
Date
1The Commission ordered the agency to supplement the record with
affidavits from officials involved in the agency's response to the
congressional inquiry; comparative evidence regarding treatment
of similarly situated employees; and copies of other documents
related to complainant's complaint, including copies of documents
from complainant's personnel file and copies of any agency policies
regarding agency response to congressional inquiries. The Commission
further ordered the agency to issue a final decision after completion
of the supplemental investigation.
2 As noted in our prior decision, the instant complaint only concerns
whether the agency's response to the congressional inquiry was
discriminatory, not whether complainant's September 1997 demotion was
discriminatory.