01980307
06-02-2000
Phyllis L. McIntyre, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Phyllis L. McIntyre v. United States Postal Service
01980307
June 2, 2000
Phyllis L. McIntyre, )
Complainant, )
) Appeal No. 01980307
v. ) Agency No. 4F-900-0098-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), reprisal (prior EEO activity), and age (DOB:
8/21/50), 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.<1>
Complainant alleges she was discriminated against when on December 17,
1996, she was not allowed a schedule change. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
the FAD as MODIFIED.
The record reveals that during the relevant time, complainant was
employed as a Distribution Window Clerk, PS-5, at the agency's Preuss
Station, Los Angeles, CA District facility. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint on February 10, 1997, wherein she alleged that she
had been discriminated against as described above.<2> At the conclusion
of the investigation, complainant did not request a hearing; therefore,
the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of sex, age, or reprisal discrimination because she presented no
evidence that similarly situated individuals not in her protected classes
were treated differently under similar circumstances. The FAD also noted
that complainant failed to establish a causal connection between her EEO
activity and the action complained of. Complainant made no arguments
on appeal.<3> The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979) (applying McDonnell Douglas to age cases); and
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission agrees
with the agency that complainant failed to establish a prima facie case
of discrimination on any basis. In reaching this conclusion, however,
we note that complainant's lack of comparison employees who were granted
schedule changes in similar circumstances caused her failure to establish
a prima facie case with respect to sex and age discrimination only.
It was complainant's failure to establish a causal connection between
her prior EEO activity and the denial of her requested schedule change
that resulted in the lack of a prima facie case of reprisal.
Therefore, after a careful review of the record, we affirm the FAD
as MODIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
June 2, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant also alleged discrimination in work assignments and conflict
with another employee, but as these issues were not previously discussed
with the EEO counselor, the agency did not accept them for investigation.
3On appeal, complainant stated that the complaint "was for change of
off days. Not reporting time." But complainant did not object when
the agency accepted the complaint as dealing only with the issue of
"not allowed a schedule change." Complainant is advised that she must
discuss the issue of a change of off days with the EEO Counselor first
before filing a new complaint on this matter.