01971522
04-29-1999
Charlotte M. Pelleher, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Charlotte M. Pelleher, )
Appellant, )
)
v. ) Appeal No. 01971522
) Agency No. 1C-451-1142-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
___________________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision 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. This appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's final
decision is AFFIRMED.
During the period in question, appellant was employed as a Supervisor in
Distribution Operations at the agency's bulk mail center in Cincinnati,
Ohio. Appellant alleges that she was discriminated against on the bases
of sex (female) and in reprisal for testifying in another EEO case when
on April 11, 1996, she was denied leave.
On June 7, 1996, appellant filed a formal EEO complaint alleging that
the agency had discriminated against her as referenced above. The
agency accepted appellant's complaint and conducted an investigation.
Following the agency's investigation, appellant was issued a copy of
the investigative report and informed of her right to request a hearing
before an EEOC Administrative Judge or a final agency decision on
the record. Appellant received notice of her rights on September 18,
1996, but failed to request a hearing within the 30-day time period.
Thereafter, and in accordance with 29 C.F.R. � 1614.110, the agency
issued a final decision finding no discrimination.
In its final decision, the agency found that appellant failed to
establish a prima facie case of sex discrimination because she was
unable to demonstrate that she had been treated differently than a
comparative employee in a similar situation. Specifically, the agency
found that the comparative employee identified by appellant reported
to a different manager and was thus not similarly situated to her.
The agency also concluded that appellant failed to establish a prima
facie case of retaliation, noting that she failed to submit evidence
of her alleged prior EEO participation or that her managers were aware
of her alleged prior EEO participation. Moreover, appellant could not
therefore demonstrate a causal connection between her alleged prior EEO
participation and the denial of her leave
Assuming, arguendo, appellant had established a prima facie case of
discrimination on all bases, the agency concluded that management
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency explained that when a supervisor, like appellant,
requests leave, she asks the supervisor with whom she is partnered to
cover for her, and if the partner agrees, the leave is granted by the
manager. The agency stated that appellant was denied leave on April
11, 1996 because her partner could not cover for her and because she
was needed for service. As appellant was unable to show that other
supervisors under her manager's authority were allowed to leave under
similar circumstances, the agency concluded that appellant failed to
establish pretext. Thus, the agency determined that appellant failed
to prove, by a preponderance of the evidence, that she was a victim of
intentional discrimination.
After a careful review of the record,<1> and applying the legal standards
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp 318 (D. Mass) aff'd 545 F.2d 222 (1st Cir. 1976) (applying
McDonnell Douglas to retaliation cases), the Commission agrees with
the agency that appellant failed to establish a prima facie case of
intentional discrimination.
Accordingly, we AFFIRM the agency's final decision.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
April 29, 1999 ____________________________
DATE Ronnie Blumenthal, Director 1 We note
that neither party submitted a statement on appeal.