01971672
01-15-1999
Shirley A. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Shirley A. Smith v. United States Postal Service
01971672
January 15, 1999
Shirley A. Smith, ) Appeal No. 01971672
Appellant, ) Agency No. 1-H-301-1001-95
v. ) Hearing No. 110-96-8189X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
DECISION
Appellant 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, as amended, 42
U.S.C. �2000e et seq. The appeal is accepted pursuant to the provisions
of EEOC Order No. 960.001.
The issue presented is whether appellant was discriminated against based
on her sex and retaliation for prior EEO activity when she was advised
that she not eligible to be rehired in September 1994.
In 1983, appellant served in the Army for less than two months. She had
a number of casual appointments with the agency until February 1993,
when she was terminated for cause. Appellant filed an EEO complaint
challenging her termination. In March 1993, she settled her EEO complaint
by an agreement that the agency would accept her resignation in lieu of
termination.
In July 1994, appellant attended an agency session for recruitment under
the Veterans Readjustment Act ("VRA") and was interviewed. However,
during the interview, an agency official learned that appellant did not
complete 180 days of military service and, therefore, was ineligible
for a VRA appointment. Nonetheless, in September 1994, the agency sent
appellant a request for a drug screen analysis, which appellant completed.
When appellant later contacted the agency, she was told that she was
not eligible to be rehired. The two pertinent agency officials (both
females) maintained that appellant was not hired because she sought
employment by attending the VRA session, for which she was ineligible.
After learning that she would not be hired, appellant timely sought
EEO counseling and filed her instant EEO complaint, which the agency
accepted and investigated. Thereafter, appellant requested a hearing
before an EEOC Administrative Judge ("AJ"). After a hearing, the
AJ issued a recommended decision ("RD") finding no discrimination.
Noting that both referenced agency officials were females and were not
involved in appellant's prior EEO complaint, which was settled some 16
months previously, the AJ questioned whether appellant could establish
a prima facie case of discrimination or reprisal. In addition, while
appellant claimed that she had submitted applications to the agency for
other positions, for which VRA eligibility would not be an issue, the AJ
noted that appellant had not provided any evidence of such applications.
Finally, while appellant stated that one agency official had told her that
she was ineligible for rehire because of a record of credit card theft,
appellant stated in her EEO complaint that a different agency official
told her that she was ineligible for rehire because of allegations that
she had falsified a time card. The AJ concluded that appellant presented
no evidence that either her sex or her prior EEO complaint were factors
in her failure to be rehired in September 1994.
In its FAD, the agency adopted the RD. Appellant timely appeals, but
offers no argument.
After a careful review of the record, the Commission finds that the RD
adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the AJ's finding that appellant failed to establish discrimination
or reprisal. Therefore, it is the decision of the Commission to AFFIRM
the FAD.
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:
Jan 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations