05A20730
08-12-2002
Evelyn Minor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Evelyn Minor v. United States Postal Service
05A20730
08-12-02
.
Evelyn Minor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20730
Appeal No. 01A21436
Agency No. 4J-480-0227-99
Hearing No. 230-A0-4176X
DENIAL OF REQUEST FOR RECONSIDERATION
Evelyn Minor (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Evelyn Minor v. United States Postal Service, EEOC
Appeal No. 01A21436 (April 30, 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).
Complainant filed an EEO complaint claiming that she had been
discriminated against on the bases of race (Black), color (black), age
(37) and sex (female) when, on June 19, 1999, she was asked to resign
or be terminated during her probationary period. The agency dismissed
the basis of age because complainant was not over 40; complainant did
not appeal this dismissal. After the complaint was investigated and
complainant was issued the report of investigation, she requested a
hearing before an AJ. The AJ determined that the case was appropriate
for a decision without a hearing, and issued a decision finding that
the complainant had not been discriminated against.
In her December 6, 2001 summary judgment decision, the AJ found that
there were no genuine disputes with respect to material facts and no
issues regarding credibility which would require a hearing. She found
that complainant had not established prima facie cases on the bases
of race, color or sex. Assuming complainant had met her prima facie
cases, the AJ further found that the agency had articulated legitimate,
non-discriminatory reasons for its action, in that complainant's
unsatisfactory performance over the course of her probationary period had
been documented. The AJ concluded that complainant had not shown that
agency's reasons to be pretext for discrimination, especially in light
of complainant's statement that she �did not say discrimination based
on sex, race, color or age. I said discrimination for calling me lazy,
slow and tired.� The AJ issued a decision finding no discrimination,
which the agency implemented.
The previous decision affirmed the agency's implementation of the
AJ's decision. The record supported the findings of the AJ, and there
was no evidence in the record that discrimination was the cause of
complainant's termination. The AJ's issuance of summary judgment was
appropriate because there were no issues of material fact in dispute.
While we note that the complainant's story about what happened at the
termination meeting with her supervisor differed from the supervisor's
version, the difference is not �material� in light of the statement made
by complainant that discrimination was not the cause of her termination.
Both on appeal and in her request for reconsideration, complainant
submitted an argument which did not show how the AJ's findings were
incorrect, but which stated that her case was based on �being lied to�
and not based on race, color or sex.
The Commission is charged with enforcing individual and class complaints
of employment discrimination and retaliation prohibited by Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. (discrimination on the bases of race, color, religion, sex
and national origin), the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. (discrimination on the basis
of age when the aggrieved individual is at least forty years of age),
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. (discrimination on the basis of
disability), or the Equal Pay Act of 1963, as amended, 29 U.S.C. �
206(d) et seq. (sex-based wage discrimination), as well as claims
of retaliation under these statutes. The Commission cannot remedy
complainant's perceived unfair treatment if it was not based on one of
the protected classes under these statutes.
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), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A21436 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
____08-12-02______________
Date