Mavis Hooks, Appellant,v.Wiliam J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 21, 1999
01975666 (E.E.O.C. Sep. 21, 1999)

01975666

09-21-1999

Mavis Hooks, Appellant, v. Wiliam J. Henderson, Postmaster General, United States Postal Service, Agency.


Mavis Hooks v. United States Postal Service

01975666

September 21, 1999

Mavis Hooks, )

Appellant, )

)

v. )

) Appeal No. 01975666

Wiliam J. Henderson, ) Agency No. 4F-900-1247-95

Postmaster General, )

United States Postal Service, )

Agency. )

_______________________________)

DECISION

Appellant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning her allegation that the agency discriminated against her in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The appeal is accepted by the Commission

in accordance with the provisions of EEOC Order No. 960.001. For the

reasons set forth below, we AFFIRM the FAD.

The issue presented is whether appellant proved that she was discriminated

against, as referenced above, when she was denied overtime on August 5

and 6, 1995 in retaliation for signing a petition against her Station

Manager.

Appellant, a clerk, filed her formal complaint on September 25,

1995. Following an investigation, she was provided a copy of the

investigative file and notified of her right to request a hearing before

an EEOC Administrative Judge (AJ). Appellant requested a hearing, but

on April 16, 1997, the AJ remanded the case to the agency. On June 17,

1997, the agency issued a final decision finding no discrimination. It is

from this decision that appellant now appeals. On appeal, appellant's

representative maintained that she had also been subjected to

discrimination based on her race, sex, and national origin.<1>

According to the record, appellant, in July 1995, was told by her

supervisor that she had to work on one of her off-days because her

office was moving to a new location over the weekend of August 5 and 6,

1995. On August 3, 1995, however, she was told by her supervisor that A-2,

the Station Manager, Customer Services at the Terminal Annex Post Office,

had decided not to grant overtime to anyone, but, instead, would use the

custodians to move equipment. On August 7, 1995, appellant discovered

that four (4) other clerks had been allowed to work overtime that weekend.

Appellant, in her formal complaint and affidavit, maintained that she

had been denied overtime because, in 1994, she signed a petition against

A-2. Appellant did not provide any details about the petition; however,

she alleged that A-2 threatened her and stated that she would make things

difficult for her. According to the investigative report, A-2 and A-1,

the Supervisor, Customer Services, did not submit affidavits as they were

requested to; however, in interviews given during the pre-complaint stage,

they maintained that appellant was not contacted to work overtime because

the address and phone number she had provided were not current.

A prima facie case of reprisal is established by showing that: (1) an

employee engaged in a protected EEO related activity; (2) the employer

was aware of the protected activity; (3) the employee was subsequently

subjected to adverse treatment; and (4) the adverse action followed

the protected activity within such a period of time that retaliatory

motivation may be inferred. Manoharan v. Columbia University College of

Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould,

808 F.2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,

790, (D.C. Cir. 1984).

We find that appellant has not established a prima facie case of

discrimination, based on reprisal, because she failed to demonstrate that,

in signing the petition against A-2 in 1994, she engaged in a protected

EEO activity. Consequently, we find that appellant did not establish

that she was discriminated against on the basis of reprisal.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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 this 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 this 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 this 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:

Sept. 21, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The Commission has held that a complainant may allege discrimination

on all applicable bases, including sex, race, national origin, color,

religion, age, disability and reprisal, and may amend his or her

complaint at any time, including at the hearing, to add or delete bases

without changing the identity of the claim. See Sanchez v. Standard

Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. USPS, EEOC Request

No. 05940563 (January 19, 1995). Here, appellant is attempting to amend

her complaint on appeal. The agency, however, has already investigated

her allegation and issued a FAD. Consequently, there is no evidence

of discrimination based on race, sex or national origin in the record.

2The agency is reminded that 29 C.F.R. �1614.108(b) requires that it

"[d]evelop a complete and impartial factual record upon which to make

findings on the matters raised by the written complaint." We find that

the record in this case barely met this standard.