01986098
03-07-2000
Steven V. Blalock, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
Steven V. Blalock v. United States Postal Service
01986098
March 7, 2000
Steven V. Blalock, )
Complainant, )
) Appeal No. 01986098
v. ) Agency No. 4D-270-0042-97
) Hearing No. 140-98-8046XRNS
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful discrimination based on race (Black)
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., when he was taken off his light duty assignment
and the assignment was given to a White employee (E1). In accordance
with the provisions of Equal Employment Opportunity Commission (EEOC or
Commission) Order No. 960.001, complainant's appeal from the agency's
final decision in the above-captioned matter has been accepted by the
Commission.<1> For the reasons that follow, it is the decision of the
Commission to AFFIRM the agency's final decision, which adopted the
recommended findings and conclusions of the Administrative Judge (AJ).
On appeal, complainant contends: (1) the agency representative failed to
initiate the scheduling of a pre-hearing conference; (2) management's
actions violated the local union contract, in that complainant was
allegedly able to perform the minimum required responsibilities to qualify
for light duty under the contract, whereas E1 was not able to do so;
(3) the light duty assignment task E1 was performing was not provided
for by the local union contract; and (4) E1 was permitted to return
to work in a leg cast, whereas complainant was required to wear closed
toe footwear in order to be eligible for light duty. Complainant has
also submitted on appeal a purported excerpt from the referenced union
agreement and a newsletter excerpt regarding agency footwear requirements.
Based on our review of the record, we discern no basis to disturb the
AJ's findings and conclusions, which gave full and fair consideration
to the issues presented in accordance with the record before her.
With respect to appellate contention (1), the failure to convene a
pre-hearing conference cannot in and of itself provide the basis for
reversing the FAD. Moreover, in the instant case, as noted by the AJ in
her recommended findings and conclusions, complainant failed to object or
comment in response to a notice dated May 4, 1998, advising the parties
that the AJ intended to issue a recommended decision without a hearing,
and inviting the parties to submit comment within fifteen days.
With respect to appellate contentions (2) - (4), we note that the record
of investigation (ROI) before the AJ, including the EEO Counselor's
Report, the formal complaint, and complainant's affidavit, did not contain
the documentation on which complainant premises appellate contentions
(2) - (4). Moreover, as noted above, complainant failed to submit this
or any other information to the AJ, notwithstanding the notice explaining
his right to do so. No new evidence will be considered on appeal unless
the evidence was not reasonably available during the hearing process.
Therefore, after a careful review of the record, including any appeal
contentions by the parties, and any other arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
decision.
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:
3/7/00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1 On 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.