01971723
01-15-1999
Ann Marie De Genaro, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (P/W Region), Agency.
Ann Marie De Genaro v. United States Postal Service
01971723
January 15, 1999
Ann Marie De Genaro, ) Appeal No. 01971723
Appellant, ) Agency No. 4E-890-1042-95
) Hearing No. 340-96-3138X
v. )
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(P/W Region), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her complaint 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. See EEOC Order No. 960.001.
In her complaint, appellant alleged that she was discriminated against
based on her sex and race (White) when the agency shifted her schedule
around to fit the needs of the Postal Service; on the basis of reprisal
when the agency terminated her employment; and on the basis of reprisal
when she was allegedly not allowed time to prepare her EEO complaint.
The record reflects that, since October 1993, appellant was employed as
a Window Relief Clerk. On December 19, 1994, a runner for the Las Vegas
Review Journal (the "Journal") arrived at her facility with a check in the
amount of $260, which was the exact amount needed to renew the Journal's
postal permit and business reply account. Appellant, however, entered a
payment of only $75.00 into the automated account system. On December 28,
1994, agency officials became aware of this error when the Journal was
denied permission to use its postal permit on the basis that its account
was delinquent. Thereafter, the Journal presented the agency with a
copy of the canceled check presented to appellant on December 19, 1994.
Appellant was unable to account for the missing $185.00. Agency officials
testified that appellant had repeated shortages in the course of the
prior year and had been sent for retraining and additional audits.
(Such audits apparently concluded that her shortages were possibly due to
the misappropriation of funds.) Appellant was placed on administrative
leave on February 15, 1995, and terminated effective March 24, 1995.
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency. Appellant
timely requested a hearing before an EEOC Administrative Judge ("AJ")
and, after the hearing, the AJ issued a recommended decision ("RD")
finding no discrimination.
The AJ found that the agency was entitled to rearrange the schedule of
Window Relief Clerks to fit its needs, and that appellant was aware that
her hours and days off were subject to change. While expressing doubt
that appellant could establish a prima facie case of discrimination,
the AJ found that she failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for her schedule
changes were a pretext for discrimination.
While noting that appellant had engaged in EEO activity shortly before
her placement on administrative leave and subsequent termination, the
AJ was not persuaded that she established a causal connection between
her protected activity and the adverse action. However, assuming
that appellant could establish a prima facie case of retaliation,
the AJ again found that she failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions were
a pretext for discrimination.
The record reflects that the AJ consolidated appellant's allegation
regarding the alleged denial of time to prepare her EEO complaint with
a similar allegation contained in a complaint filed by appellant's
representative (the "Representative"), who was a union steward at the
time in question. The AJ found that while appellant requested to see
the Representative on December 21, 1994, her request did not indicate
that it concerned an EEO matter. In any event, the agency provided time
for appellant and the Representative to confer on December 30, 1994,
but the time was not used because appellant called in sick on that date.
The AJ found that the Representative never requested time to confer with
appellant or otherwise work on her complaint after December 30, 1994.
Because no other request for time was made, and because neither appellant
nor the Representative were able to establish that any official knew
of their desire to see one another regarding the complaint or knowingly
prevented them from doing so, the AJ found no violation of Title VII or
the Commission's Regulations.<1>
The agency adopted the RD in its FAD. Appellant timely appeals, but
offers no argument.
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. 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 Commission's records do not reflect that the Representative filed
an appeal from the FAD adopting the RD's finding regarding the alleged
denial of time to assist appellant in presenting her complaint. But see
Sessoms v. United States Postal Service, EEOC Appeal No. 01973440 (June
11, 1998)(a claim that a representative was improperly denied official
time lies with the complainant, and not with the representative).