01972098
06-09-1999
Patricia Larrieu, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Patricia Larrieu, )
Appellant, )
) Appeal No. 01972098
v. ) Agency No. 4E-800-1054-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision
(FAD) concerning her Equal Employment Opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. Appellant alleges that she was discriminated
against on the bases of sex (female) and age (DOB: 10/23/50) when she was
removed for unacceptable conduct. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
The record reveals that during the relevant time, appellant held a
bid position as a Time and Attendance Clerk at the agency's facility
in Rock Springs, Wyoming. Believing she was discriminated against as
referenced above, appellant sought EEO counseling and subsequently filed
a complaint on March 12, 1996. At the conclusion of the investigation,
appellant was granted thirty days to request a hearing before an EEOC
Administrative Judge. Appellant failed to request a hearing within the
thirty day time period. Thereafter, the agency, in accordance with 29
C.F.R. � 1614.110, issued a final decision finding no discrimination.
The FAD concluded that appellant failed to establish prima facie cases
of sex and age discrimination because she presented no evidence that
she was satisfactorily performing the duties of her position or that
similarly situated individuals not in her protected classes were treated
more favorably under similar circumstances. It is from this decision
appellant now appeals. Appellant did not submit a statement in support
of her appeal. The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981) and Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), the Commission finds that appellant provides no
credible evidence to rebut the agency's contention that her conduct
was unacceptable. In reaching this conclusion, we note that the
agency removed appellant after an agency investigation revealed that
she violated agency regulations by inserting improper time rings and
using her position to adjust time rings without proper authorization.
In addition, she authorized personal overtime and altered her work
schedule without supervisory approval. Furthermore, appellant fails to
prove that similarly situated employees who had engaged in such conduct
were treated more favorably.
Since appellant has failed to establish a prima facie case of
discrimination, the FAD requires no further review. Therefore, after
a careful review of the record, including arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
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:
June 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations