05a00747
10-20-2000
Brenda P. Fisher, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Alleg./Mid-Atl. Region), Agency.
Brenda P. Fisher v. United States Postal Service (Alleg.-Mid-Atl. Region)
05A00747
October 20, 2000
.
Brenda P. Fisher,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Alleg./Mid-Atl. Region),
Agency.
Request No. 05A00747
Appeal No. 01980498
Agency No. 1D-231-1172-96
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Brenda
P. Fisher v. United States Postal Service (Alleg./Mid-Atl. Region), EEOC
Appeal No. 01980498 (April 7, 2000).<1> 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).
In her original complaint, complainant alleged that she was discriminated
against when on or about June 16, 1996, management denied her request
for advance sick leave (ASL). In her request, complainant contends that
she did, in fact, accumulate a sizable amount of sick leave during the
period from May 1994 through June 1996, contrary to the assertion of her
supervisor, and submits copies of relevant pay stubs as proof. She cites
this as evidence that she would have returned to work and reimbursed the
agency for the ASL, instead of having the agency take her accumulated
annual leave to make up the leave deficit. Complainant also notes that a
similarly situated employee not in her protected groups did not have his
request for ASL for the period July 17 - August 18, 1995, approved until
August 4, 1995, after he had already begun using ASL from July 17, 1995,
onwards. Thus, complainant contends that this comparative employee's ASL
request was approved �after the fact,� despite an agency rule that ASL
must be approved in advance, and is therefore evidence of discrimination.
In this regard, the Commission notes that complainant's request for ASL
for the period February 2 - February 28, 1996, was dated May 9, 1996,
and therefore clearly in violation of the above rule by more than three
months. In contrast, the comparative employee's request was made on
the same day that he began his ASL, and was approved with two weeks left
of the ASL period still to run. Thus, the timing and approval of this
request is clearly distinguishable from that of the complainant's request;
hence we find that a discriminatory inference cannot be drawn from such
different circumstances. See Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission therefore 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. 01980498 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 20, 2000
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.