01972350
03-03-1999
Pearlie Watson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.
Pearlie Watson, )
Appellant, )
) Appeal No. 01972350
v. ) Agency No. 4-H-310-1010-94
) Hearing No. 110-96-8348X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region) )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when she
was denied a transfer to a full-time position at the Albany, Georgia
Post Office (Albany). 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 was employed
as a PTF Clerk at the Americus, Georgia Post Office (Americus), and
applied for a transfer to Albany, in mid-1993 pursuant to the agency's
policy which permitted part-time employees with no active disciplinary
actions on file to transfer to full-time positions at other facilities.
On August 2, 1993, the agency denied appellant's transfer request, as
she had a live disciplinary record for unsatisfactory performance of
her duties.
Believing that she was a victim of discrimination, appellant sought
EEO counseling and, subsequently, filed a formal complaint on October
19, 1993, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, appellant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie
case of race discrimination, as she did not demonstrate that similarly
situated employees not in her protected class were granted a transfer
from Americus despite having a live disciplinary record. The AJ noted
that appellant attempted to compare herself with two White employees,
but as she conceded at the hearing that neither employee was transferred
from Americus despite having an active disciplinary record, appellant
failed to identify similarly situated employees not in her protected
class who were treated more favorably than she was.<1> The agency's
FAD adopted the AJ's RD. Appellant makes no new contentions on appeal,
and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
failed to establish a prima facie case of race discrimination, as
she failed to identify similarly situated employees not members of her
protected class who were granted a transfer despite an active disciplinary
record. We thus discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that the AJ mistakenly stated that appellant failed to identify
similarly situated employees not a member of her protected class who were
treated �less� favorably, as opposed to �more� favorably, than she was.
See RD at page 6.