Lee T. Staropoli, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 12, 2009
0520080463 (E.E.O.C. Feb. 12, 2009)

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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