05980657
11-29-2000
Sandy L. Habersham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E. Region), Agency.
Sandy L. Habersham v. United States Postal Service
05980657
November 29, 2000
.
Sandy L. Habersham,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(S.E. Region),
Agency.
Request No. 05980657
Appeal No. 01965612
Agency No. 4-H-310-1056-95
Hearing No. 110-95-8364X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Sandy
L. Habersham v.United States Postal Service, EEOC Appeal No. 01965612
(March 12, 1998).<1> 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).
In her original complaint, complainant alleged that she was discriminated
against on the basis of reprisal for filing a prior EEO complaint
when she was not selected for the position of part-time flexible (PTF)
City Carrier position on or about October 20, 1994. In his Recommended
Decision (RD), the EEOC Administrative Judge found that complainant failed
to establish a prima facie case of retaliation because she did not show
that the selecting official (SO) was aware of her prior EEO complaint.
The agency concurred with the RD in its final decision (FAD), and on
appeal, we affirmed the FAD.
In her request, complainant includes her race (Black) as an additional
basis of discrimination. However, this basis was not raised in her
formal complaint or thereafter before the FAD was issued. Therefore,
we need not consider it now. Butler v. United States Postal Service,
EEOC Appeal No. 01972872 (April 20, 2000) (citing Sanchez v. Standard
Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. United States
Postal Service, EEOC Request No. 05940563 (January 19, 1995)).
Complainant also notes that her test score was higher than that of the
two selectees (STs), that she had two years of experience delivering mail
to none for the STs, that her former supervisor (FS) gave her a typed
and signed excellent recommendation, that she was never reprimanded for
having a poor attitude or being slow, that she was not at fault in the
accident for which she was terminated, and that she filed a grievance
over her termination and as part of the grievance settlement, was
allowed to return to work �without prejudice.� Despite this, however,
the accident was cited as one of the reasons she was not selected for
the PTF Carrier position. The agency did not respond to complainant's
request for reconsideration.
The AJ observed, however, that even if complainant had established a prima
facie case of reprisal, it would be rebutted by the SO's testimony that
�she was not the best qualified applicant because of her driving record
and her performance when she returned to work on the 20th of September,
1994.� The SO's testimony as to complainant's poor performance and
attitude when she returned to work was corroborated by complainant's FS,
who noted that complainant was not as good a worker and not as friendly
when she returned to work as she had been when FS wrote and signed the
recommendation, of which the SO had no knowledge. In contrast, the SO
had received favorable recommendations from the STs' supervisors, and one
of the STs had an accident-free driving record while the other was not
at fault in an accident in which she was involved. Thus, the AJ found
that complainant did not carry her burden of proof to show that she was
not selected because she had filed an EEO complaint as opposed to her
poor job application, which included her driving record of two at-fault
vehicle accidents within a four-day period, as well as a failure to timely
report a vehicle accident, all in violation of agency regulations .
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.� Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951). A finding that discriminatory intent did
not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). We note that the AJ did make such a finding
based on substantial evidence in the record as outlined above, a finding
in which we concur.
After a review of the 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), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01965612 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
November 29, 2000
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.