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.