01A22562_r
08-23-2002
Angella Henning, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angella Henning v. United States Postal Service
01A22562
August 23, 2002
.
Angella Henning,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22562
Agency No. 1-J-603-0047-97
Hearing No. 210-A2-6005X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Part-time Flexible Mailhandler, PS-04, at the agency's South Suburban
Processing and Distribution Center. Complainant sought EEO counseling
and subsequently filed a formal complaint on or about February 9, 1998,<1>
claiming that she was discriminated against on the bases of race (Black),
color (dark), and sex (female), when her promotion to the clerk craft
position of PTF Flat Sorter Machine Operator was delayed until June 6,
1997,<2> and the agency failed to correct her seniority.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ canceled the hearing
for failure to prosecute on October 22, 1999, and the agency dismissed the
complaint for failure to prosecute on June 9, 2000. Complainant appealed
the agency's decision, and, on September 19, 2001, the Commission reversed
the agency's decision and remanded the complaint for further processing.
The complaint file was returned to the Hearings Unit of the Commission's
Chicago District Office for a hearing.
On November 2, 2001, another AJ issued an Acknowledgment and Order,
directing the parties to file pre-hearing submissions, and, on December
19, 2001, complainant was Ordered to Show Cause to the AJ in writing no
later than January 8, 2002, for failure to comply with the Acknowledgment
and Order, and to explain why sanctions should not be imposed.
Complainant and her representative failed to respond to the Order to
Show Cause, and, on January 22, 2001, the AJ found that complainant
failed to proceed and to cooperate in the processing of her complaint.
As a sanction, the AJ dismissed complainant's request for a hearing and
ordered the agency to issue a final decision on the merits. The agency
issued its final decision on March 20, 2002, finding no discrimination.
In its decision, the agency concluded that complainant failed to
establish a prima facie case of discrimination on the bases of race,
color and sex. Additionally, the agency found that even assuming that
complainant established a prima facie case of discrimination, complainant
failed to rebut the agency's articulated legitimate non-discriminatory
reason for its actions. The agency stated pursuant to the Personnel
Operations Handbook EL-311, career vacancies may be filled at the option
of the appointing officer by any of the following means: promotion;
reassignment; change to lower level; transfer from another federal agency;
reinstatement; and selection of persons within reach on the register of
eligibles for the position to be filled.
Even assuming that complainant properly established a prima facie case
of discrimination on the bases of race, color and sex, we find that
the agency met its burden of production by articulating a legitimate,
nondiscriminatory reason for its actions. Essentially, the agency
claimed that management was permitted to exercise its discretion
within the boundaries of the Personnel Operations Handbook in filling
career vacancies. The agency added that complainant failed to establish
that complainant's race, color, or sex were factors considered by the
agency when selecting the sixteen employees who received Flat Sorter
Machine Operator positions on May 10, 1997, and May 24, 1997, prior to
complainant. Moreover, the agency notes that of the employees who were
selected prior to complainant, fourteen of the employees were Black,
and two employees were White; twelve of the employees were female, and
twelve were male. Complainant failed to show that the agency's actions
were motivated by prohibited discrimination.
Therefore, we AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 23, 2002
__________________
Date
1Complainant's complaint is dated February 9,
1997; however, in its final decision, the agency stated that complainant's
complaint was filed on February 9, 1998. Complainant does not contest
the agency's date of filing.
2The record reveals that the effective date of complainant's promotion
to the clerk craft position was June 7, 1997.