Patricia Larrieu, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJun 9, 1999
01972098 (E.E.O.C. Jun. 9, 1999)

01972098

06-09-1999

Patricia Larrieu, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Patricia Larrieu, )

Appellant, )

) Appeal No. 01972098

v. ) Agency No. 4E-800-1054-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision

(FAD) concerning her Equal Employment Opportunity (EEO) 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.; and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. Appellant alleges that she was discriminated

against on the bases of sex (female) and age (DOB: 10/23/50) when she was

removed for unacceptable conduct. The appeal is accepted in accordance

with EEOC Order No. 960.001. For the following reasons, the agency's

decision is AFFIRMED.

The record reveals that during the relevant time, appellant held a

bid position as a Time and Attendance Clerk at the agency's facility

in Rock Springs, Wyoming. Believing she was discriminated against as

referenced above, appellant sought EEO counseling and subsequently filed

a complaint on March 12, 1996. At the conclusion of the investigation,

appellant was granted thirty days to request a hearing before an EEOC

Administrative Judge. Appellant failed to request a hearing within the

thirty day time period. Thereafter, the agency, in accordance with 29

C.F.R. � 1614.110, issued a final decision finding no discrimination.

The FAD concluded that appellant failed to establish prima facie cases

of sex and age discrimination because she presented no evidence that

she was satisfactorily performing the duties of her position or that

similarly situated individuals not in her protected classes were treated

more favorably under similar circumstances. It is from this decision

appellant now appeals. Appellant did not submit a statement in support

of her appeal. The agency requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253-256 (1981) and Loeb v. Textron, 600 F.2d 1003

(1st Cir. 1979), the Commission finds that appellant provides no

credible evidence to rebut the agency's contention that her conduct

was unacceptable. In reaching this conclusion, we note that the

agency removed appellant after an agency investigation revealed that

she violated agency regulations by inserting improper time rings and

using her position to adjust time rings without proper authorization.

In addition, she authorized personal overtime and altered her work

schedule without supervisory approval. Furthermore, appellant fails to

prove that similarly situated employees who had engaged in such conduct

were treated more favorably.

Since appellant has failed to establish a prima facie case of

discrimination, the FAD requires no further review. Therefore, after

a careful review of the record, including arguments and evidence not

specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

June 9, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations