05A20708
08-05-2002
Margaret L. Napier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Margaret L. Napier v. United States Postal Service
05A20708
August 5, 2002
.
Margaret L. Napier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20708
Appeal No. 01A14168
Agency Nos. 4E852000198 & 4E852015297
Hearing Nos. 350-A0-8008X & 350-A0-8133X
DENIAL OF REQUEST FOR RECONSIDERATION
Margaret L. Napier (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Margaret L. Napier v. United States Postal Service, EEOC
Appeal No. 01A14168 (April 4, 2002). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b).
Complainant alleged that she was discriminated against on the basis
of sex when she was subjected to harassment/hostile work environment.
She further alleged that she was subjected to retaliation for prior EEO
activity (under Title VII) when she was denied training, higher level pay,
and an assignment to the position of an Ad-hoc EEO Counselor/Investigator.
The prior decision affirmed the agency's decision to implement the
Administrative Judge's finding of no discrimination which was issued
without a hearing. In so doing, the previous decision noted that,
even assuming that the events happened as described by complainant,
they did not rise to the level of a hostile work environment based on
complainant's sex. The previous decision also found that the issue of
complainant's non-selection to the Ad-hoc Counselor/Investigator position
in August 1996 was the subject of a previous appeal. See Napier v. United
States Postal Service, EEOC Appeal No. 01982090 (March 10, 1999).
Finally, the previous decision determined that complainant failed to
raise a genuine dispute in regard to her supervisor's explanation for
denying complainant training and a higher level of pay in July 1997.
In her request for reconsideration, complainant contends that she was
selected for an Ad-hoc Counselor/Investigator position in 1992 but was
never placed in the position due to retaliation. Her argument appears to
be that the position for which she was selected in 1992 was not filled
until 1997 when Ad-hoc Counselor/Investigator training was offered.
She contends that she was not placed in the position in retaliation for
an EEO complaint filed in August 1996.
Complainant's argument is without merit. It is undisputed that
complainant's supervisor selected individuals to serve as Ad-hoc
Counselors/Investigators in August 1996, that complainant was
not selected, and that complainant filed a complaint about this
non-selection which was dismissed for untimeliness. See Napier, EEOC
Appeal No. 01982090, supra. It is undisputed that the individual to
whom complainant compares herself in attempting to prove discrimination
was sent to the 1997 training and received a higher level of pay
because she, unlike complainant, had been selected to serve as an Ad-Hoc
Counselor/Investigator in August 1996. Complainant's supervisor testified
without rebuttal that although it was initially thought that others could
attend the training, when training was finally approved, approval was
limited to those who would be serving as counselors and/or investigators
Complainant argues that, contrary to a notation in the previous
decision, the subject of the instant complaint is the denial of her
placement in the Ad-hoc Counselor/Investigator position for which she
was selected in 1992. She provides an inadequate explanation for why
she did not contact an EEO counselor concerning this issue for more
than 4 years after it occurred. Her argument appears to be that she
thought she would be placed in the position when it became available,
but then realized when she was denied training in 1997 that she had
been subjected to retaliation. This argument is without merit. First,
there is no dispute that when the Ad-hoc position was advertised in 1996,
complainant filed a complaint when she was not selected for the position.
If complainant believed, as she claims, that she was to be placed in the
position based on her 1992 selection, the appropriate time to raise the
concern was in her prior complaint. As noted above, that complaint was
properly dismissed by the agency. Furthermore, it is undisputed that
complainant did not engage in protected EEO activity until August 1996,
which, as noted by the AJ, was long after she was denied placement in the
Ad-hoc Counselor/Investigator position in 1992. Although complainant
attempts to revive the 1992 issue, the fact that she was not permitted
to serve as an Ad-hoc Counselor/Investigator in 1992 does not raise a
genuine issue of material fact as to why she was not provided training
and a higher level of pay in 1997.
Accordingly, after a careful review of the record, it is decision of
the Commission to deny the request for reconsideration. The decision
in EEOC Appeal No. 01A14168 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
August 5, 2002
Date