01971010
09-03-1999
Mary A. Rankin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Mary A. Rankin, )
Appellant, )
)
v. )
)
William J. Henderson, ) Appeal No. 01971010
Postmaster General, ) Agency No. 4G780126995
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in retaliation for prior EEO activity, in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges that she was retaliated against when she was not
reinstated by the agency to the position of part time flexible postal
clerk. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that from 1980 to 1984 appellant was employed at
agency facilities in Mississippi and Louisiana. From June 1984 to
October 1984, she was employed as an EEO Counselor at the agency's
Jackson, Mississippi Main Post Office. In October 1984, appellant
resigned from her employment with the agency. Some eleven years later,
in April 1995, Appellant sought to be reinstated at an agency facility
in Wimberly, Texas. She did this by inquiring of the postmaster whether
any positions were available and submitting documentation showing the
positions she had previously held with the agency. Appellant alleges
that although the agency was in the process of filling a vacancy for a
part-time flexible clerk at the time she was seeking reinstatement, the
selecting official did not select her because of her prior involvement
with EEO activities, both as a counselor and as a complainant.
Believing she had been a victim of retaliation, appellant sought EEO
counseling and, subsequently, filed a complaint on July 23, 1995.
At the conclusion of the investigation, appellant requested that the
agency issue a final agency decision.
The FAD concluded that appellant had failed to prove her claim because
she had not established a causal connection between her EEO activity
and the agency's failure to reinstate her.
On appeal, appellant makes the contentions, inter alia, that the agency
improperly failed to credit her testimony and failed to conduct an
adequate investigation. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Based on McDonnell Douglas v. Green, 411 U.S. 792 (1973) and Van Druff
v. Department of Defense, EEOC Appeal No. 01962398 (Feb. 1, 1999),
the Commission finds that appellant failed to present evidence that,
more likely than not, the agency's articulated reasons for its actions
were a pretext for retaliation. In reaching this conclusion, we note
that the selecting official concluded that appellant was not eligible
for reinstatement to the position in question because of the eleven years
elapsed since the termination of appellant's Postal Service employment and
an intervening change in the training requirements for postal clerks.<1>
In her statement on appeal, appellant does not dispute the agency's
representations concerning her qualifications. Indeed, nowhere in the
record does appellant affirmatively contend that she was eligible for
reinstatement to the position in question.
CONCLUSION
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.<2>
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:
9/03/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1New testing
requirements for all agency career employees were
instituted in 1994.
2Appellant's argument that the agency's investigation of her complaint was
inadequate need not be separately addressed. Given our conclusion that
appellant was not qualified for the position in question, a more rigorous
investigation into the circumstances of appellant's nonselection could
not have resulted in a different outcome before the agency or on appeal.