01a00516
02-24-2000
Lamar W. Sessoms, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lamar W. Sessoms, )
Complainant, )
)
v. ) Appeal No. 01A00516
) Agency Nos. 1D-221-1022-95
) 1K-221-0110-97
William J. Henderson, ) Hearing Nos. 100-99-7110X
Postmaster General, ) 100-99-7109X
United States Postal Service, )
Agency. )
________________________________)
DECISION
The Commission finds that the agency's October 18, 1999 decision finding
that the agency did not retaliate against complainant for his prior
protected activity was proper.<1>
Complainant alleged in the consolidated complaints that he was
discriminated against when:
On October 17, 1994, complainant was placed on Emergency Placement (off
duty without pay) effective October 12, 1994, and returned to duty on
November 9, 1994.
On November 11, 1994, complainant was denied the contractual right to
bid on bargaining unit postal positions.
On November 11, 1994, complainant was denied the opportunity to work
the Veteran's Day holiday.
On March 19 and 25, 1997, the agency established a policy denying
complainant a schedule change for travel to the EEOC to attend settlement
conferences.
Complainant requested a hearing before an EEOC Administrative Judge.
An administrative judge issued a decision dated July 19, 1999 without
holding a hearing. The administrative judge effectively found, and the
Commission agrees, that the material facts were not in dispute.
The administrative judge found that the agency articulated a legitimate,
non-discriminatory reason for complainant's emergency placement.
The administrative judge found that the record showed that complainant
and a coworker were both placed in an off-duty status because of
improper conduct and a verbal and physical altercation with each other.
Regarding claim 2, the administrative judge found that complainant
failed to state a claim because he failed to show that he wad denied a
contractual right to bid on bargaining unit positions. Regarding claim 3,
the administrative judge found that complainant failed to show that he was
denied the opportunity to work on Veteran's Day. The administrative judge
found that complainant failed to produce evidence showing why he could not
have volunteered to work on Veteran's Day. The administrative judge found
that complainant failed to state a claim in claim 3 because he failed to
show he was harmed. The administrative judge also found that complainant
failed to state a claim in claim 4 because complainant does not have
standing to file EEO complaints with respect to the denial of schedule
changes for his representation of other complainants. The administrative
judge concluded, concerning the two complaints, that complainant failed
to produce evidence showing that he was discriminated against.
In the agency's October 18, 1999 decision the agency concurred with
the decision of the administrative judge that the evidence of record
does not support the claims of discrimination based on retaliation.
After reviewing the complete record the Commission finds that the
administrative judge correctly determined that complainant failed to show
by a preponderance of the evidence that the agency's actions in claims
1 - 4 were motivated in any way by retaliation for complainant's prior
protected activity. Because of our disposition we do not address the
administrative judge's finding that some of the matters fail to state
a claim.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 24, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.