0520080463
02-12-2009
Lee T. Staropoli, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lee T. Staropoli,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520080463
Appeal No. 0120062924
Agency No. HI000001803
DENIAL
Complainant timely requested reconsideration of the decision in Lee
T. Staropoli v. United States Postal Service, EEOC Appeal No. 0120062924
(March 26, 2008). EEOC regulations provide that the Commission may,
in its discretion, grant a request to 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).
Complainant filed a formal complaint alleging discrimination on the
bases of sex (female), disability (unspecified), and in reprisal for
prior EEO activity when:
1. she was denied a promotion;
2. she was denied equal pay;
3. she was subjected to a hostile work environment;
4. she was given unequal work loads;
5. she was threatened with retaliation;
6. the agency violated the Rehabilitation Act and the Family and Medical
Leave Act;
7. the agency violated the Family Friendly Work Alternative; and
8. she was denied a part-time work schedule.
After an investigation, the AJ assigned to the case determined that
complainant failed to present facts that would raise an inference of
discrimination. Briefly, the record revealed that complainant worked
for the agency as a Polygraph Examiner Program Manager, and had sought a
part-time schedule since 1999. There is no dispute that at the time of
her request, there were no part-time schedules for Polygraph Examiners.
Complainant was out of work due to exhaustion from May 1, 2001 until July
16, 2001. After her absence, complainant failed to return, was placed
on absence without leave (AWOL), and terminated on December 3, 2001.
In 2002, the agency began a pilot program allowing part-time schedules.
In February 2002, complainant applied for a position, but was not
selected. The complaint at bar followed.
The prior decision affirmed the agency's implementation of the AJ's
decision without a hearing. The prior decision found that the agency
articulated a legitimate, nondiscriminatory reason for not selecting her
for the promotion; namely, that she did not satisfy the job requirement
of the position that she have worked in a Postal Inspector position
within the previous year. The prior decision also found complainant
failed to present evidence of pretext with respect to her claim
that she was denied part-time work, as no one with complainant's job
classification was authorized to work part-time. The prior decision
found that complainant had been given other accommodations to attend
to her childcare responsibilities. The prior decision also found that
the evidence supporting complainant's remaining Equal Pay, denial of
accommodation, and hostile work environment claims did not present any
genuine dispute of material fact, and as such, the AJ found complainant
had not been subjected to discrimination, without a hearing.
Complainant's final claim was that the agency's failure to provide a
part-time work program, while facially neutral, had a disparate impact
on women. The AJ found that complainant failed to establish a nexus
between the lack of such policy and complainant's protected class, and
also, that complainant could not overcome the agency business necessity
of restricting complainant's job classification from having part-time
schedules. On appeal, complainant offered many statistics to support
her claim; however, the prior decision found that she failed to show a
statistical disparity existed that was linked to challenged policy or
practice.
In her Request, complainant centers her arguments around her
disparate-impact claim. She alleges that the agency's failure to provide
a part-time work schedule had a disparate impact on women, who often
resigned due to childcare responsibilities. This number she claims,
is not statistically insignificant.
After reconsidering the previous decision and the entire record, the
Commission 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. Complainant failed to establish that the prior decision
involved a clearly erroneous interpretation of material law or fact
because she failed to establish a prima facie case for her disparate
impact claim. Specifically, she has not "identified any specific
test, requirement, or practice" which has an adverse impact on women.
See Smith v. City of Jackson, 544 U.S. 228, 241 (2005). Rather, she has
only pointed to a "generalized policy," the lack of the availability of
part time schedules. Id.
Furthermore, even if complainant were able to establish a policy here
caused a statistically significant number of women to resign, the record
is undisputed that here complainant did not resign. She was terminated
for AWOL.1 Accordingly, complainant cannot establish the requisite
causal connection.
Accordingly, the decision in EEOC Appeal No. 0120062924 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 12, 2009
Date
1 We further note that complainant filed a class complaint on this issue,
which was denied on June 18, 2002.
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0520080463
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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