05980281
12-06-2000
Kathryn M. Deavers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area) Agency.
Kathryn M. Deavers v. United States Postal Service (Mid-Atlantic Area)
05980281
December 6, 2000
.
Kathryn M. Deavers,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Area)
Agency.
Request No. 05980281
Appeal No. 01960974
Agency No. 4D-230-1259-94
Hearing No. 120-95-6390X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Kathryn
M. Deavers v. United States Postal Service (Mid-Atlantic Area), EEOC
Appeal No. 01960974 (January 13, 1998).<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).
The issues presented by the underlying complaint were whether complainant
was discriminated against on the basis of sex (female) when: (1) on August
20, 1994, the agency failed to post the bid position of a deceased male
coworker; and (2) the work hours and scheduled days off were changed
for this position when complainant was promoted to it.
In his recommended decision (RD), the EEOC Administrative Judge
(AJ) granted summary judgment for the agency, concluding that there
was sufficient evidence upon which to base a decision and no genuine
dispute as to any material fact. The RD found that complainant failed to
establish by a preponderance of the evidence that she was subjected to the
discrimination alleged. The agency then concurred with the RD in its own
final decision (FAD), and complainant timely appealed. The appellate
decision applied a de novo standard of review pursuant to 29 C.F.R. �
1614.405(a) and affirmed the AJ's finding of no discrimination.
In her request for reconsideration, complainant contends that summary
judgment was improper and that she should have been given a hearing, as
information she had requested from the agency and the testimony of her
proposed witnesses was crucial to disproving the agency's articulated
reason for its actions. As noted in our prior decision, the Postmaster
had averred that due to an office reorganization and loss of a supervisor,
the operational needs of the post office allowed for only one employee
to be given an off day on Saturday, and this was given to the employee
with the greatest seniority, a male carrier. Because complainant
was the senior Part-Time Flexible (PTF) employee, no other employee
was eligible to bid on the vacant position of the deceased coworker.
Therefore, the Postmaster did not post a Vacancy Announcement noting the
change in the scheduled days off of this position, but rather explained
the reason for this change to complainant, who had previously expressed
an interest in the position.
We find that complainant has not presented any evidence or argument that
was not previously considered by the Commission when we affirmed the
agency's final decision. Therefore, after a review of the complainant's
request for reconsideration, the previous decision, and the entire
record, the Commission thus 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. 01960974
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
December 6, 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.