05990901
10-31-2001
Amelia Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.
Amelia Smith v. United States Postal Service
05990901
October 31, 2001
.
Amelia Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Request No. 05990901
Appeal No. 01973620
Agency No. 4B140111696
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Amelia Smith
v. United States Postal Service, EEOC Appeal No. 01973620 (June 22, 1999).
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b).
The record reveals that during the relevant time, complainant was employed
as an Occupational Health Nurse assigned to the Rochester, New York,
Postal Health Office. Believing she was a victim of discrimination,
complainant filed a complaint, alleging that she was discriminated against
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
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. � 621 et seq.,
based on race (black), age (over 40), and reprisal (prior EEO activity)
when: (1) on July 29, 1996, the Office of Personnel Management (OPM)
and the Social Security Administration (SSA) were sent correspondence
about her age; (2) she was sent for re-training on August 6, 1996; (3)
she was forced to use her personal money for lodging on August 5, 1996,
for the re-training; (4) during the re-training, she was placed in an
unventilated basement to study and given outdated material for review;
and (5) she was subject to on-going harassment. At the conclusion of
the investigation, complainant was informed of her right to request
a hearing before an EEOC Administrative Judge or alternatively, to
receive a final decision (FAD) by the agency. When complainant failed
to respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued the FAD.
In its FAD, the agency articulated legitimate, nondiscriminatory reasons
in response to the first four allegations. With respect to the first
allegation, the agency asked complainant to verify her date of birth due
to conflicting dates found in her Official Personnel File and records
in the Medical Unit. The agency notified OPM and SSA that her date of
birth was in 1940, although complainant had responded that her date of
birth was in 1930. The agency noted that it relied upon sworn testimony
by complainant in an arbitration proceeding that her date of birth was in
1940, and that complainant verified the date to be true. With respect
to the second allegation, the agency indicated that the Administrator
testified that complainant was sent for retraining because complainant
felt unprepared to administer a Department of Transportation drug test.
With respect to the third allegation, the agency found that the hotel did
not accept her credit card; that the Administrator told her to use her
personal credit card and she would be reimbursed; and that complainant
was reimbursed by the agency. With respect to the fourth allegation,
the agency found complainant declined to study in the newly remodeled
Human Resources Conference Room, and that complainant received the
proper training material. With respect to the fifth allegation, the
agency found that complainant failed to establish that the allegedly
harassing behavior was sufficiently severe or pervasive as to create a
hostile work environment.
Complainant appealed. On appeal, the Commission affirmed the FAD.
On reconsideration, complainant submits a letter from Nurse K, dated
July 3, 1999, as new evidence to support complainant's allegation of
harassment and hostile work environment. With respect to allegation one,
complainant also argues that management should have asked complainant for
a birth certificate. Complainant also submits a news article indicating
that the agency has not been compiling its EEO data correctly.
Nurse K worked in the Health Unit from July 1995 through May 21, 1999.
More significantly, Nurse K worked with complainant during the time in
which the events leading to this complaint transpired. Complainant
does not indicate why Nurse K could not have provided a statement
earlier in this proceeding. Nevertheless, Nurse K's statement lacks
sufficient specificity of harassment of complainant on a protected
basis, i.e., race, age, reprisal. Almost all of Nurse K's commentary
was of a general, conclusory, and non-specific nature; did not involve
complainant; or applied to all affected employees, including Nurse K,
not just complainant. With respect to allegation one, complainant does
not indicate that the agency submitted any incorrect information to OPM
or SSA about her birth date. To the extent allegations two, three, and
four were considered to be harassment, complainant does not question the
earlier decision's disposition of those allegations. Complainant has
not shown the relevance of the news article to the facts of her case.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01973620 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
October 31, 2001
Date