05a10406
12-04-2001
Judith R. Schilens v. United States Postal Service 05A10406 12-04-01 .Judith R. Schilens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith R. Schilens v. United States Postal Service
05A10406
12-04-01
.Judith R. Schilens,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A10406
Appeal No. 01A10725
DENIAL OF REQUEST FOR RECONSIDERATION
On February 17, 2001, Judith R. Schilens (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Judith R. Schilens
v. William J. Henderson, Postmaster General, United States Postal Service,
EEOC Appeal No. 01A10725 (January 17, 2001). EEOC Regulations provide
that the Commission may, in its discretion, reconsider any previous
decision where the party demonstrates that: (1) the previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue herein is whether the previous decision properly affirmed the
final agency decision finding that complainant had not been subjected to
sex (female), age (46), disability (Carpal Tunnel Syndrome), and reprisal
(prior EEO activity under Title VII) discrimination.
BACKGROUND
A review of the record reveals that complainant filed a formal EEO
complaint in July 1998, alleging that she was discriminated against on
the bases of her sex, age, disability, and in reprisal for prior EEO
activity when: 1. beginning in mid April 1998, she was subjected to
derogatory comments about her casing method; 2. on June 28, 1998, she
was forced to use a cart to deliver her route; and 3. her comfort stops
were altered. The agency accepted complainant's complaint for processing,
and conducted an investigation. Following a hearing in the matter, the
Administrative Judge (AJ) issued a decision, finding that complainant
had not been subjected to discrimination as alleged. The agency,
in a decision dated September 8, 2000, implemented the AJ's decision.
On appeal, the previous decision affirmed the final agency decision,
stating that the AJ's ultimate finding was supported by the record.
In her request for reconsideration, complainant summarily asserted that
the previous decision failed to consider all of the evidence. The agency
countered that the request did not meet the criteria for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument which tends to establish that at least one of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to be
reconsidered, the request must contain specific information which meets
the requirements of this regulation. For the reasons set forth below,
the Commission denies complainant's request for reconsideration.
A careful review of the record reveals that the AJ correctly determined
that complainant was not subjected to discrimination with regard to
the matters alleged. The Commission notes that while the AJ stated,
in part, that complainant failed to establish a prima facie case of sex
discrimination because she did not show that she was treated differently
than similarly situated employees, complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. See O'Connor v. Consolidated
Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002, n. 4
(September 18, 1996). Nevertheless, even assuming that complainant was
able to establish a prima facie case with regard to any of the alleged
bases, she has not proven her claim of discrimination.
As noted by the AJ, the record does not show that complainant was required
to use a cart to deliver her entire route. Complainant acknowledged using
the cart to deliver certain portions of her route, and that she did so by
her own choice. Further, management stated that complainant's comfort,
or restroom stops were changed to another location which was closer to her
route in order to save time. Complainant acknowledged that the location
was in fact closer, and stated that she had used the facility in the past.
Finally, the record fails to support a finding of harassment. It appears
that one supervisor told complainant that she was slow in casing mail,
and that a Manager stated that the problem with complainant's hands
could be related to her casing method. These statements, however, were
isolated incidents, and were not sufficiently severe or pervasive such
as to create a hostile work environment. Accordingly, we find that
the previous decision properly affirmed the September 8, 2000 final
agency decision.
CONCLUSION
After a review of complainant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that complainant's request fails to meet the criteria
of 29 C.F.R. �1614.405(b), and it is therefore the decision of the
Commission to DENY complainant's request. The decision in EEOC Appeal
No. 01A10725 (January 17, 2001) remains the Commission's final decision.
There is no further right of administrative appeal on a decision of the
Commission on this request for reconsideration.
STATEMENT OF RIGHTS ON 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
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Date