01a00204
07-12-2000
Beverly Hurston, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.
Beverly Hurston v. United States Postal Service
01A00204
July 12, 2000
Beverly Hurston, )
Complainant, )
) Appeal No. 01A00204
v. ) Agency No. 1G-781-0068-97
) Hearing No. 360-98-8544X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 bases of race
(Black), age (51), and disability (lower back), when, on March 18, 1997,
she was not selected for a clerk position in New Braunfels, Texas.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, an applicant for a Part Time Flexible
Distribution Clerk position at the agency's New Braunfels, Texas facility,
filed a formal EEO complaint with the agency on September 3, 1997,
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). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
race and age discrimination because the selectees, who were not in her
protected classes, were selected for the positions and she was not.
The AJ also found, however, that complainant failed to establish she was
an individual with a disability. Specifically, the AJ noted complainant's
testimony wherein she stated that her degenerative disc condition did not
substantially limit her ability to walk or perform other daily activities.
The AJ also disagreed with complainant's contention that she was regarded
as disabled when the agency asked her during the interview if she could
lift 70 pounds.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
was interviewed for the position, but was not selected based on the
agency's application of the �rule of three.� Specifically, complainant
was considered, along with the other applicants, in groups of three.
Complainant was considered three times but not selected. As reason, the
Selecting Official testified that complainant's application package, dated
March 1997, did not reference complainant's earlier postal positions.
As such, this raised questions in the eyes of the Selecting Official as
to complainant's post office work history. Additionally, the Selecting
Official testified that she did not select complainant because complainant
suggested during her interview that she incurred problems meeting quotas
while at the Internal Revenue Service. The Selecting Official also
testified that complainant seemed to place blame on her supervisor at
the IRS, when she discussed the reasons for her failure to achieve her
quotas.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, however, the AJ did note
that the agency's application of the �rule of three� in this situation
was suspicious in that it resulted in the only two African American
applicants not selected for the positions, despite their higher score
results. Despite this result, the AJ was persuaded that complainant's
interview performance was the reason for her non-selection, rather than
a discriminatory manipulation of the �rule of three.� In addition, the
AJ was persuaded that complainant was not selected for the position due
to problems she incurred while working for the IRS, as well as questions
surrounding complainant's prior employment with the postal service.
On September 2, 1999, the agency issued a final decision adopting the
AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
Complainant disputes that she blamed her production problems on her
supervisor, and argues that she did not conceal her prior work history.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission 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 persuasive evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race, age
or disability. We concur with the AJ's finding that complainant failed
to establish she is an individual with a disability. Additionally,
complainant established an insufficient nexus between her age and
disability to her nonselection. Although complainant established a
prima facie case of race discrimination, she failed to present sufficient
persuasive evidence that would prove the agency's reasons for its actions
were a pretext for race discrimination. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
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:
July 12, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.