Alyce L. Lumpkins, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01a03660 (E.E.O.C. Aug. 28, 2000)

01a03660

08-28-2000

Alyce L. Lumpkins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.


Alyce L. Lumpkins v. United States Postal Service (N.E./N.Y. Metro

Region)

01A03660

August 28, 2000

.

Alyce L. Lumpkins,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(N.E./N.Y. Metro Region),

Agency.

Appeal No. 01A03660

Agency No. 4A-110-0057-99

Hearing No. 160-AO-8046X

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405). Complainant alleges she was

discriminated against on the basis of race (Black) when, during the

period December 14, 1998 through January 6, 1999, she was denied the

opportunity to work as an Acting Supervisor (204-B).

For the following reasons, the Commission AFFIRMS the agency's final

action.

The record reveals that complainant, a Distribution/Window Clerk at the

agency's Far Rockaway, New York Post Office facility, filed a formal EEO

complaint with the agency on April 12, 2000, alleging that the agency

had discriminated against her as referenced above. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge

(AJ). Determining that there was no genuine issue as to any material

fact, however, the AJ issued a decision without a hearing, finding no

discrimination.

The AJ concluded that even assuming complainant had established a prima

facie case of race discrimination, the agency articulated a legitimate,

nondiscriminatory reason for its action, namely, that the agency replaced

complainant in order to give other qualified employees the opportunity

to work as a 204-B.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reason was a pretext to mask unlawful

discrimination. In reaching this conclusion, the AJ declared that

she would not �second-guess an Agency's personnel decision absent

a demonstrably discriminatory motive.� The agency's final action

implemented the AJ's decision.

Complainant makes five contentions on appeal, as follows:

1. She was performing an adequate job as a 204-B;

2. The evaluation of the Manager, Customer Services, that she was

not forceful enough with the employees she supervised as a 204-B, was

erroneous;

3. The Acting Postmaster tried to discourage and obstruct her from

serving as a 204-B by telling her that she would have to work as a window

clerk for six months before he would consider her being a 204-B;

4. Another employee who was of Chinese descent and acting as a 204-B

was also replaced after she had a disagreement with the Postmaster; and

5. Complainant's being replaced was done to discourage complainant and

boost the career of her White replacement.

The agency did not reply to complainant's contentions on appeal.

As to complainant's first two contentions, we note that the Postmaster

stated that complainant's performance as a 204-B was acceptable, and

his was the rating that mattered. As to the third contention, we find

that the Acting Postmaster articulated a legitimate, nondiscriminatory

reason for asking complainant to work as a window clerk for six months,

i.e., she had had large cash shortages when she last worked as a window

clerk and had to master the duties of that position in order to show

window clerks whom she would supervise that she had full knowledge of

their job responsibilities. Finally, as to complainant's fourth and

fifth contentions, we also find that the Postmaster also articulated a

legitimate, nondiscriminatory reason for replacing complainant and the

employee of Chinese descent: to give a third qualified employee the same

opportunity to function in the 204-B position as he did complainant and

the employee of Chinese descent.

After a careful review of the record, the Commission thus finds

that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. We note

that complainant failed to present by a necessary preponderance of the

evidence that the agency's replacement of her as a 204-B was motivated

by discriminatory animus toward complainant's race, in view of the agency

reasons explained above. Hence, we discern no basis to disturb the AJ's

decision. Therefore, after a careful review of the record, including

complainant's contentions on appeal and arguments and evidence not

specifically addressed in this decision, we AFFIRM the agency's final

action.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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 (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

August 28, 2000

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.