Kathryn M. Deavers, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area) Agency.

Equal Employment Opportunity CommissionDec 6, 2000
05980281 (E.E.O.C. Dec. 6, 2000)

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.