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).