Shirley A. Smith, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01971672 (E.E.O.C. Jan. 15, 1999)

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