Regina Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Areas), Agency.

Equal Employment Opportunity CommissionOct 31, 2000
01984983 (E.E.O.C. Oct. 31, 2000)

01984983

10-31-2000

Regina Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Areas), Agency.


Regina Smith v. United States Postal Service

01984983

October 31, 2000

.

Regina Smith,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Great Lakes Areas),

Agency.

Appeal No. 01984983

Agency No. 4J-606-1113-94

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated

against on the basis of reprisal (prior EEO activity), when, between

August 21, 1993 until January 7, 1995, she was not allowed to work her

bid assignment and thereby lost overtime.

The record reveals that during the relevant time, complainant was

employed as a Flat Sorter Machine Operator, at the agency's Chicago

Central Processing & Distribution Center facility. Believing she

was a victim of discrimination, complainant sought EEO counseling and

subsequently filed a formal complaint on July 19, 1995. At the conclusion

of the investigation, complainant was informed of her right to request

a hearing before an EEOC Administrative Judge or, alternatively, to

receive a final decision by the agency.<2>

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of reprisal in that she failed to prove that the

responsible officials were aware of her prior EEO activity. As such,

the agency found complainant failed to prove she was subjected to

retaliation.

On appeal, complainant contends that the agency misdefined the complaint.

Further, she argues that she was denied overtime. The agency requests

that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the

Commission agrees with the agency that complainant failed to establish

a prima facie case of reprisal discrimination because she failed to

establish the requisite causal connection between the action at issue

and complainant's prior EEO activity. In reaching this conclusion, we

note that complainant stated in her complaint and affidavit that she was

denied the opportunity to work her bid position as a Window Clerk since

August 21, 1993. The record reveals that complainant filed a union

grievance in December 1993. Assuming, arguendo, that this grievance

is considered protected activity under our regulations, we fail to find

the requisite causal connection between complainant's protected activity

and the acts at issue. In light of the fact that complainant was denied

her bid position prior to her participation in the EEO process, we find

factors other than complainant's protected activity were likely at issue

when the agency denied complainant the opportunity to work her job as

a Window Clerk.

The Commission further finds that complainant failed to present evidence

that more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. In reaching this conclusion,

we note that evidence in the record reveals that complainant's bid

position as a Window Clerk was incorrectly posted for 2:00 a.m. instead

of 2:00 p.m. Since the window was not open at the time complainant bid

for the position, her services were not needed, and she was assigned

elsewhere. According to the agency, regular workers staffed the Window

Clerk positions at 10:30 a.m. when complainant's shift ended, and as such,

there was no need for her to work overtime.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, must be filed

with the office of federal operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 31, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2During the relevant time, complainant filed five other complaints.

The complaints were all consolidated for hearing. Complainant and the

agency entered into a settlement agreement regarding the five other

complaints, and complainant withdrew her request for a hearing on the

instant complaint. At her request, the agency issued a final decision.