0120063012
06-25-2007
Betty A. Burke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Betty A. Burke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01200630121
Agency No. 4E-990-0032-05
Hearing No. 380-2006-00065X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal for de novo review, from the agency's March 15, 2006 final
decision2 concerning her equal employment opportunity (EEO) complaint
alleging 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.
Complainant, a former part-time flexible clerk at the Sandpoint, Ohio
Post Office, alleged that the agency discriminated against her on the
basis of reprisal for prior protected EEO activity when, on April 26,
2005, she was issued a notice of removal for exceeding her restrictions.
Complainant asserts that she engaged in prior EEO activity when on
November 18, 2004, she contacted the EEO office in order to complain about
a supervisor's improper actions, out-of-line remarks, and "crude" jokes.
There is no indication in the record that any of the supervisor's alleged
inappropriate conduct was related to any protected basis, such as sex,
race, age, etc. Here however, we have assumed arguendo that complainant's
prior EEO activity arises under Title VII, and that she established a
prima facie case of retaliation. We note further, that complainant did
not allege disability as a basis of discrimination.
After a careful review of the record, including consideration of all
statements submitted on appeal,3 we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
June 25, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Although complainant initially requested a hearing before an
Administrative Judge (AJ), on February 16, 2006, the AJ cancelled the
hearing and remanded the case to the agency for issuance of a final agency
decision, because of complainant's failure to respond to his Notice and
Order. We will not address this matter because, on appeal, complainant
has not specifically challenged the AJ's decision to cancel the hearing.
3 On appeal, complainant contends that on January 27, 2006, she
inadvertently sent certain additional evidence to an AJ in the Seattle
District Office. She asserts that such evidence was never returned
to her. We note that complainant does not indicate why this alleged
missing evidence was not contained in the report of investigation.
Further, she fails to indicate the nature of such evidence, or why it
would be pertinent to the issue presented in this case.
??
??
??
??
2
0120063012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036