01973422
08-19-1999
Thomas P. Ciccone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Thomas P. Ciccone v. United States Postal Service
01973422
August 19, 1999
Thomas P. Ciccone, )
Appellant, )
)
v. ) Appeal No. 01973422
) Agency No. 4-H-335-1179-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In his complaint, appellant alleged that he was
discriminated against on the basis of retaliation (prior EEO activity)
when he was issued a Notice of Removal on May 9, 1996. This appeal is
accepted in accordance with the provisions of EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a PS-05 Letter Carrier at the agency's
St. Petersburg Post Office, filed a formal EEO complaint with the agency
on June 21, 1996, alleging retaliation as referenced above. The agency
accepted the complaint for processing, and at the conclusion of the
investigation, appellant was granted thirty days to request a hearing
before an EEOC Administrative Judge. After appellant failed to respond
within the appropriate time frame, the agency issued a FAD finding no
retaliation.
The FAD concluded that appellant failed to establish a prima facie
case of retaliation because he presented no evidence that the
responsible management official had any knowledge of his prior EEO
activity. The FAD nevertheless concluded that the agency articulated
a legitimate, nondiscriminatory reason for its action, namely, that
appellant failed to satisfy the terms of the Last Chance Agreement
("Agreement") that he entered into with the agency on June 16, 1995.
The Agreement provided that appellant would be terminated unless he
maintained certain performance standards for a period of one year.
After a full route inspection in April 1996, the agency determined that
appellant failed to maintain his performance standards. Finally, the FAD
found that appellant did not offer any evidence demonstrating that the
agency's articulated reason was a pretext to mask unlawful retaliation.
On appeal, appellant contends that there was no Agreement in effect when
he returned to work. The agency stands on the record as developed and
requests that we affirm its FAD.
As for appellant's contention that there was no Agreement in effect
when he returned to work, the Commission finds that the record contains
a copy of the Agreement dated June 16, 1995 and signed by appellant,
his union and the agency. The record does not contain any documentation
terminating or voiding the Agreement.
As to the merits of the case, after a careful review of the record,
based on McDonnell Douglas v. Green, 411 U.S. 792 (1973), Shapiro
v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996),
and Hochstadt v. Worcester Found. for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission finds
that appellant failed to establish a prima facie case of retaliation.
The record lacks any credible evidence demonstrating that the responsible
management official in this case had actual knowledge of appellant's prior
EEO activity. Moreover, we find that appellant failed to show that his
termination was for any other reason than his failure to maintain the
performance standards required by the Agreement.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
August 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations