Amelia Smith, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity CommissionOct 31, 2001
05990901 (E.E.O.C. Oct. 31, 2001)

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unventilated basement to study and given outdated material for review;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