Gail S. Poole, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01973920 (E.E.O.C. Sep. 2, 1999)

01973920

09-02-1999

Gail S. Poole, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.


Gail S. Poole, )

Appellant, )

) Appeal No. 01973920

v. ) Agency No. 4H-310-1149-95

) Hearing No. 110-96-8303X

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W. Areas), )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision

(FAD) concerning her equal employment opportunity (EEO) complaint

of unlawful employment discrimination on the bases of sex (female),

reprisal (prior EEO activity), age (3/1/53), and disability (Rosacea),

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges she

was discriminated against when on June 1, 1995, the agency issued her

a Notice of Removal terminating her employment effective June 3, 1995.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that appellant, a former Part-Time Flexible (PTF)

Window Clerk at the agency's Wrightsville, Georgia facility, filed a

formal EEO complaint with the agency on August 29, 1995, alleging that

the agency had discriminated against her as referenced above. At the

conclusion of the investigation, appellant requested a hearing before

an Equal Employment Opportunity Commission (EEOC) Administrative Judge

(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)

finding no discrimination.

The AJ concluded that appellant failed to establish a prima facie case

of discrimination on the bases of race or sex, in that she failed to

demonstrate that similarly situated employees not in her protected classes

were treated differently under similar circumstances. Furthermore,

although appellant established that she had a disability, she failed to

establish a prima facie case on that basis in that she failed to identify

individuals who were not terminated for conduct similar to hers. However,

the AJ did find that appellant had raised an inference of discrimination

on the basis of reprisal, in that she established the requisite causal

connection between her prior EEO activity and her removal.

The AJ then concluded that the agency articulated a legitimate,

nondiscriminatory reason for its action. Specifically, the Postmaster

testified that appellant was issued a Notice of Removal for failing

to follow a direct order in which the Postmaster directed appellant to

come to his office; for using profane statements towards the Postmaster;

and for failing to follow the directions of the Postmaster.

The AJ found that appellant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination or retaliation. In reaching this conclusion, the AJ

found that although appellant argued that she used profanity only in

response to harassment by the Postmaster, the AJ found that appellant

failed to pursue established procedures for dealing with such matters.

For instance, instead of complaining to appropriate individuals about

the treatment she had received from the Postmaster, she resisted direct

orders, used profanity, and refused to return her keys. Instead, the

AJ found that in contrast, the Postmaster followed agency procedures

when he terminated appellant.

On March 28, 1997, the agency issued a final decision adopting the

AJ's RD. On appeal, appellant restates arguments previously made at

the hearing. Furthermore, appellant names employees who have not been

disciplined for failing to follow orders. She also contend that these

individuals are available to testify. The agency responds by restating

the position it took in its FAD, and requests that we affirm its FAD.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that appellant failed to present

sufficient evidence that her Notice of Removal was in retaliation for

her prior EEO activity or was motivated by discriminatory animus toward

her sex, age or disability. Finally, we note that appellant, who was

represented by an attorney, had a fair hearing before an EEOC AJ, during

which she had the opportunity to call witnesses has she so desired.

We discern no legal basis in which to overturn the AJ's finding of

no discrimination. Therefore, after a careful review of the record,

including appellant's contentions on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

9/2/99

DATE Carlton M. Hadden, Director

Office of Federal Operations