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.