01a45990
08-11-2005
Joe E. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joe E. Williams v. United States Postal Service
01A45990
08-11-05
.
Joe E. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45990
Agency No. 4C-290-0045-03
Hearing No. 140-2004-00104X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled
matter. Complainant alleged that the agency discriminated against him
on the bases of race (Black) and reprisal for prior EEO activity when:
(1) on November 27, 2002, his supervisor spoke to him in a hostile,
abusive, and unprofessional manner; (2) he was denied a verbal
request to work out-of-schedule for a doctor's appointment; and (3)
he was denied overtime. After a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to affirm
the agency's final order, because the Administrative Judge's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.<1>
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
____08-11-05______________
Date
1On appeal, complainant's attorney indicated that the agency failed to
provide her with a copy of its motion for summary judgment. The agency,
in response, maintained that the reason was due to the failure of
complainant's attorney to note her appearance in the case as required
by the Administrative Judge's Acknowledgment Order. We do not find
the agency's explanation to be persuasive. As noted by complainant's
attorney, she attended and participated in the deposition in this
case. Her name and address also appear at page 2 of the deposition.
Notwithstanding the above, we do not find that the decisions of the
Administrative Judge and the agency should be set aside. First, we
note that there is no dispute that complainant was mailed a copy of
the agency's motion and could have provided it to his attorney. We also
note that, on appeal, complainant's attorney failed identify any genuine
issue of material fact that would preclude granting summary judgment in
this case.