01980498
04-07-2000
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
01980498
April 7, 2000
Brenda P. Fisher, )
Complainant, )
) Appeal No. 01980498
v. ) Agency No. 1D-231-1172-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Alleg./Mid-Atl. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (African-American), and sex (female), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges she was discriminated against when on
or about June 16, 1996, management denied her request for advanced sick
leave (ASL). The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a Flat Sorter Machine Operator at the agency's Charlottesville,
Virginia Postal facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
on October 23, 1996. The agency investigated the complaint and by
certified mail dated August 5, 1997, sent complainant a copy of the
investigative file. A cover memo notified complainant of her right to
request either a hearing before an EEOC Administrative Judge (AJ) or a
FAD without a hearing. As the agency did not receive a timely response,
it issued a FAD finding no discrimination.
The FAD concluded that complainant failed to establish a prima facie case
of either race or sex discrimination because she presented no evidence
that similarly situated individuals not in her protected classes were
treated differently under similar circumstances. In this regard, the
agency noted that a black female and a white male were granted ASL .
In addition, the agency articulated a legitimate, nondiscriminatory
reason for its action, namely, that complainant had requested ASL only
after she had already taken the time off, and ASL cannot be approved
after the leave has already been taken. Moreover, management has the
discretion to approve ASL only if it determines that the employee will
reimburse the agency for the ASL. In this regard, complainant had failed
to accumulate any sick leave balance in the two years (May 1994 through
June 1996) she worked at the facility.
On appeal, complainant contends that race and sex discrimination motivated
the agency, and further, that though she received the complaint file,
she received no information about her right to a hearing. The agency
requests that we deny and/or dismiss complainant's appeal.
We first note that complainant received the investigative file and the
hearing rights together on August 6, 1997, as evidenced by the signed
mail return receipt. Information about the hearing rights was contained
in the cover letter dated August 5, 1997, that accompanied the file.
This record evidence belies complainant's assertion on appeal, especially
when she returned the investigative file along with the hearing rights
together with her appeal to the Commission.
We next note, after a careful review of the record based on McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), that the FAD correctly found
that complainant failed to cite any comparison employee similarly situated
to herself who was treated more favorably in similar circumstances.
In this regard, the white male who was granted ASL asked for it before
he took the leave, as opposed to complainant, who asked that ASL be
approved after she had already taken it. Hence, the circumstances were
not similar and the white employee was therefore not similarly situated
to complainant.
Furthermore, the Commission finds that complainant failed to present
any evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination.
Having failed to articulate any support for her contention that race
and sex motivated the agency's actions, we therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (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:
April 7, 2000
Date Carlton M. Hadden, Acting Director
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.