01971602
01-15-1999
Agatha Rendina, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (GrtL/Mid-W Region), Agency.
Agatha Rendina v. United States Postal Service
01971602
January 15, 1999
Agatha Rendina, ) Appeal No. 01971602
Appellant, ) Agency Nos. 1J-601-1075-94
) 1J-601-1169-94
v. ) 4J-600-1045-95
) 4J-600-1044-95
William J. Henderson, ) Hearing Nos. 210-96-6231X
Postmaster General, ) 210-96-6232X
United States Postal Service, ) 210-96-6233X
(GrtL/Mid-W Region), ) 210-96-6242X
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621
et seq. See EEOC Order No. 960.001. In her complaints, appellant
alleged that she was discriminated against based on her (a) race (White)
and reprisal for prior EEO activity when she was denied a temporary
change of schedule on January 27, 1994, and March 17, 1994; (b) race
and sex when she was denied the right to cancel her annual leave and
work overtime on September 6th and 8th, 1994; (c) race and sex when her
requests to perform different job tasks than keying were rarely approved;
(d) age (date of birth: 9/16/40) and reprisal when she was allegedly
harassed about her overtime usage in a meeting on October 14, 1994; (e)
race and reprisal when her supervisor assigned a coworker (a Black male,
the "Coworker") to replace her in mail preparation on September 13, 1994;
(f) race and reprisal when she was not allowed to talk with a coworker
while the Coworker allegedly was allowed to talk; (g) race when management
allegedly monitored her washroom visits much more closely than the visits
of non-White coworkers; and (h) race and sex when management allegedly
continually gave her instructions to hurry up and complete assignments
while the Coworker did not have to hurry to finish assignments.
Appellant timely sought EEO counseling and filed her instant EEO
complaints, which were accepted and investigated by the agency. Appellant
timely requested hearings before an EEOC Administrative Judge ("AJ"), and
the complaints were consolidated for hearing purposes. After a hearing,
the AJ issued a recommended decision ("RD") finding no discrimination.
The record reflects that appellant worked as an Automated Markup Clerk,
Tour 3. Assuming that appellant could establish a prima facie case of
discrimination with respect to all of her allegations, the AJ found
that she failed to establish that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were a pretext for
discrimination. Specifically, with respect to allegation (a), the AJ
noted that appellant's request for leave on January 27th was granted
after appellant threatened to call in sick if it was denied. In March
1994, appellant requested a change in her reporting time to a time not
regularly established for a start-of-tour in order to have her husband
drop her off at work while her son drove her car for a week. This request
was denied because of the non-scheduled start time and because the reason
for the request was not deemed related to the needs of the service.
As to allegation (b), management officials testified that the request
to cancel scheduled annual leave was denied because appellant had
been manipulating her use of annual leave to increase her overtime
hours in violation of the applicable collective bargaining agreement.
With respect to allegation (c), management officials testified that to
the extent appellant was assigned keying responsibilities more often
than others, it was because of her proficiency at keying and because
certain allegedly comparable employees had medical restrictions which
limited their ability to key, or the time they could spend keying.
Another allegedly comparable employee was often given duties other than
keying, such as ordering supplies, because of his status as Senior Clerk.
With respect to allegation (d), the AJ was not persuaded that, even
crediting her version of the meeting, appellant was subjected to
harassment rising to the level of a violation of Title VII or the ADEA
when an agency official allegedly was rude and verbally aggressive while
discussing her use of overtime. In any event, the AJ was not persuaded
that appellant established that the legitimate nondiscriminatory reasons
given for the discussion (i.e. her alleged manipulation of overtime as
discussed in allegation (b)), were a pretext for discrimination based
on age or reprisal.
Regarding allegation (e), the record reflects that as soon as appellant
complained about a manager's directive that the Coworker replace her in
preparing mail, the directive was withdrawn. Assuming that appellant
suffered a cognizable harm, the AJ was not persuaded that the directive
was issued for discriminatory purposes. As to allegation (f), on the date
in question, appellant had been on a washroom break when she stopped to
talk to an employee engaged in work. Insofar as appellant alleged that
the Coworker was treated more favorably than she, management officials
testified that the Coworker also had been admonished for talking and was
sent to the Employee Assistance Program after his conduct did not improve.
With respect to allegations (g), the AJ found credible the testimony
of management officials to the effect that appellant's washroom visits
exceeded expected time limits and that appellant and others were avoiding
use of the nearest facility, choosing to walk to one which was a greater
distance form the unit. As a result, all employees were required to use
the nearest facility. As to allegation (h), appellant admitted at the
hearing that she had heard managers admonish the Coworker to get to work.
The agency adopted the RD in its FAD. Appellant timely appeals, but
offers no new argument.<1>
After a thorough review of the record, the Commission finds that
the RD adequately set forth the relevant facts and analyzed the
appropriate regulations, policies and laws. The Commission notes that
it generally will not disturb the credibility determination of an AJ,
who had the opportunity to observe the witnesses. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July 26,
1990). Accordingly, the Commission discerns no basis to disturb the AJ's
finding that appellant failed to establish discrimination. Therefore,
it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
Jan 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The record contains certain, mostly handwritten, material labeled
"post-hearing submissions." It is unclear whether this material was
included in the record by the agency or was sent to the Commission by
appellant after the filing of her appeal. The RD reflects that the AJ
had notified the parties that she intended to issue a bench decision
and that all such material was to be submitted by September 4, 1996.
In the RD, the AJ observed that appellant's submissions were received
after that date, and the AJ found that the material was neither probative
nor timely.