Charlene Atkinson v. United States Postal Service 01973315 August 6, 1999 Charlene Atkinson, ) Appellant, ) ) v. ) ) Appeal No. 01973315 William J. Henderson, ) Agency No. 1-C-191-1041-95 Postmaster General, ) United States Postal Service, ) (Allegheny/Mid-Atlantic Region), ) Agency. ) ) DECISION Appellant timely initiated an appeal of a final agency decision (FAD) concerning her complaint of unlawful employment discrimination on the basis of sex (female) 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 not reinstated as a Transitional Employee ("TE") after her pregnancy. This 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 TE, at the agency's Philadelphia General Mail Facility. Appellant alleged that in July 1993, her yearly contract expired. She stated that when she initiated the process to be reinstated, she was told that since she was pregnant, she would be unable to pass the required physical. Appellant further stated that the Personnel Office informed her that after she had her baby, she would be reinstated. The facility's Personnel Office stated that in July 1993, appellant expressed that she did not want to continue working because of her pregnancy and that after she had completed her pregnancy, the facility had no positions available because they were then placing Casual Employees into the TE positions. Believing she was a victim of discrimination, appellant sought EEO counseling and, subsequently, filed a complaint on July 7, 1995. The agency accepted the complaint for processing, and at the conclusion of the investigation, appellant was granted thirty days to request a hearing before an EEOC Administrative Judge. After appellant withdrew her request for a hearing, the agency issued a FAD finding no discrimination.<1> The FAD concluded that appellant failed to establish a prima facie case of sex discrimination because she presented no evidence that similarly situated individuals not in her protected class were treated more favorably. The FAD nevertheless concluded that the agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that: (1) appellant chose not to be reinstated due to her pregnancy; (2) after her termination, there were no guarantees as to reinstatement; and (3) there were no vacancies during the period appellant sought reinstatement. Finally, the FAD concluded that appellant did not meet her burden of establishing that the agency's articulated reasons were a pretext to mask unlawful discrimination. Appellant makes no new contentions on appeal, and the agency requests that we affirm the FAD. After a careful review of the record, based on McDonnell Douglas v. Green, 411 U.S. 792 (1973) and Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996), the Commission finds that appellant failed to present sufficient credible evidence demonstrating that she was subjected to unlawful sex discrimination when the agency failed to reinstate her as a TE. Appellant's own affidavit revealed that the agency had, in the past, reinstated other female TEs after returning from pregnancy. Moreover, we find that appellant failed to show that the agency's articulated reason for not reinstating her during the relevant time period was a pretext for unlawful discrimination. 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: August 6, 1999 DATE Carlton M. Hadden, Acting Director Office of Federal Operations 1 The FAD also dismissed appellant's attempt to add disability as a basis of her claim. This basis was raised two years after the alleged events and after the agency had issued its FAD. Therefore, we affirm the agency's decision to dismiss appellant's disability claim for untimeliness. See Green v Department of the Navy, EEOC Request No. 05950782 (Jan. 10, 1997); Eucare v. General Services Administration, EEOC Request No. 05940529 (Dec. 2, 1994)(holding that a basis can only be added while the complaint is in the investigation or hearing stage).