01971049
09-16-1999
Brenda D. Baker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas Agency.
Brenda D. Baker, )
Appellant, )
) Appeal No. 01971049
v. ) Agency Nos. 1D-231-1046-94
William J. Henderson, ) 4D-230-1076-94
Postmaster General, ) 4D-230-1201-94
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas ) Hearing Nos. 120-95-6713X
Agency. ) 120-95-6711X
) 120-95-6715X
Decision
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaints 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. Appellant
alleged she was discriminated against based on her race (Black), sex
(female), and reprisal (prior EEO activity) when: (1) on December 27,
1993, she was denied a detail to the Contract Technician, Administrative
Services position; (2) on December 29, 1993, she was denied a detail to
the Personnel Office, and (3) on May 14, 1994, she was not selected to
the Contract Technician position. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
Following each investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Following a hearing on all three complaints, the AJ issued a Recommended
Decision (RD), finding no discrimination. The agency's FAD adopted
the AJ's findings of no discrimination. It is from this decision that
appellant now appeals.
The record reveals that during the relevant time, appellant was
employed by the agency as an Accountable Paper Clerk, PS-5, and a
Distribution Clerk, PS-5, at the Richmond District Main Post Office,
Richmond, Virginia. On November 9, 1993, appellant was notified that her
job would be abolished effective December 25, 1993, and that she would
then be assigned to Mail Processing. On November 10, 1993, appellant
submitted requests for details to numerous offices and units within the
Richmond District Post Office.
Detail to Contract Technician Position
The AJ concluded that appellant established a prima facie case of race and
sex discrimination when she was denied a detail to the Contract Technician
position (position). A similarly situated White male employee, not in
her protected classes, was treated more favorably, and granted a detail
to the position. The AJ determined that appellant failed to establish
a prima facie case of reprisal. Since appellant established a prima
facie case of race and sex discrimination, and assuming, arguendo, that
appellant established a prima facie case of reprisal, the AJ found that
the agency articulated legitimate non-discriminatory reasons for denying
appellant a detail to the position. The responsible management official
(RMO) did not detail appellant to the position because he did not want to
give her, or anyone else an advantage when this position was posted to be
filled permanently. Also, the RMO detailed the comparator employee (C)
to the position to perform the duties of an illustrator, not a contract
technician. C's position as an Illustrator was abolished, and the RMO
needed C to continue performing the illustrator duties. The only way
to accomplish this was to detail C to the contact technician position,
which was vacant. The AJ found that appellant failed to establish that
the agency's articulated reasons were a pretext for discrimination.
Detail to Personnel Office
The AJ concluded that appellant established a prima facie case of race
discrimination. Appellant was denied a detail to the Personnel Office
(PO), and a similarly situated White female employee, not in her protected
class, was treated more favorably, and granted a detail to the PO. The AJ
found that appellant failed to establish a prima facie case of reprisal.
However, since appellant established a prima facie case of race and sex
discrimination, and assuming, arguendo, that appellant established a prima
facie case of reprisal, the AJ concluded that the agency articulated
legitimate non-discriminatory reasons for denying appellant a detail
to the PO. The RMO did not consider appellant for a detail because
the RMO had already chosen the selectee for the only available detail,
and made a prior commitment to the selectee to detail her to the PO if a
vacancy became available. Prior to appellant's request to be detailed,
the selectee had spoken to the RMO and requested to be detailed to the
PO on several occasions.
The AJ found that appellant failed to establish that the agency's
articulated reasons for denying her the detail was a pretext for unlawful
discrimination. Appellant did not provide any evidence that the agency
discriminated against her when she was not detailed to the PO.
Selection for Contract Technician Position
The AJ determined that appellant established a prima facie case of race
discrimination and reprisal. With respect to race, appellant applied,
qualified, and was not selected for the contract technician position
(position). Whereas, a similarly situated White female employee, not in
her protected class, was selected for the position. Regarding reprisal,
appellant had filed a prior EEO complaint, and she suffered an adverse
action when she was not selected for the position.
The AJ concluded that the agency articulated a legitimate
non-discriminatory reason for not selecting appellant. The selecting
official (SO) selected the selectee because she was the best qualified
candidate. Under the SO's evaluation system, the selectee had the
highest score due to her performance during the interview, and the �other
factors� considered during the selection process. Appellant had the
second highest score.
The AJ found that appellant failed to establish that the agency's
articulated reason for not selecting her was a pretext to mask unlawful
discrimination. Appellant did not provide sufficient evidence that
she was the best qualified candidate for the position, and the selectee
was not.
After a careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that appellant failed to present evidence
that any of the agency's actions were in retaliation for appellant's
prior EEO activity or were motivated by discriminatory animus toward
appellant's race and sex. We discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment
of the record and the credibility of the witnesses. See Esquer v. United
States Postal Service, EEOC Request No. 05950096 (September 6, 1996);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, the Commission discerns no
basis to disturb the AJ's findings of no discrimination. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
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:
9/16/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations