Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 22, 2014

0120131135 (E.E.O.C. Aug. 22, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120131135

Hearing No. 410-2009-00363X

Agency No. 4H-300-0245-08

DECISION
On October 6, 2010, Complainant filed an appeal from the Agency’s September 16, 2010 final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq

. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-time Flexible
Clerk at the Agency’s work facility in Powder Springs, Georgia. On September 5, 2008,
Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against her on the bases of her race (African-American) and in reprisal for her prior protected
EEO activity when since 2004, she has not been converted to a regular full-time position.

The Agency dismissed the complaint on the grounds that Complainant failed to initiate contact
with an EEO Counselor in a timely manner. In v. United States Postal
Service

, EEOC Appeal No. 0120090047 (March 24, 2009), we reversed the Agency’s final
decision and remanded the complaint for further processing.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing
on June 2, 2010, and issued a decision on September 7, 2010.
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The AJ found that no discrimination occurred. Complainant claimed that the Caucasian
Postmaster discriminated against her in not converting her to a full-time position. The AJ
noted that Complainant had been working as a Part-time Flexible since 2004, at the Powder
Springs facility. There were three Part-time Flexibles with more seniority at the facility: two
African-American males and a Caucasian female. The AJ observed that if a vacancy became
available, the more senior Part-time Flexibles would be converted to a full-time regular
position before Complainant so as not to violate the collective bargaining agreement.
According to the AJ, the Atlanta District had been in a withholding status due to the excessing
of clerks. The AJ stated that the one vacancy at Powder Springs when Complainant began
EEO counseling was to be filled by an excised clerk.

The AJ found that Complainant failed to establish a prima facie case of both race
discrimination and reprisal. The AJ stated that Complainant was not subject to an adverse
employment action nor was she treated differently or less favorably than employees not of her
protected class. The AJ reasoned that Complainant could not have been targeted due to her
race given that the three other Part-time Flexibles on the seniority list ahead of her, who were
also not converted to full-time employees, included an individual not of Complainant’s race.
With respect to the basis of reprisal, the AJ found that the absence of an adverse employment
action precluded a prima facie case. Assuming arguendo that Complainant established a prima
facie case of reprisal, the AJ found that the Agency articulated a legitimate, nondiscriminatory
reason for not converting Complainant to a full-time position. According to the AJ, the
Agency had to abide by the collective bargaining agreement, including seniority and excessing.
Finally, the AJ stated that the issue of whether or not the facility followed the nationwide
procedures for converting Part-time Flexibles to full-time employees is a contract matter
governed by the collective bargaining agreement.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. Thereafter, Complainant
filed the instant appeal.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ 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 regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
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testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant established a prima facie case of race
discrimination and reprisal with regard to not being converted to a full-time position. The
Agency explained that Complainant was not entitled to a conversion from part-time
employment to a full-time position based on the collective bargaining agreement. According to
the Agency, it would have been a violation of the agreement to make Complainant a full-time
regular over those ahead of her in seniority, and also in light of the fact that Full-time Regular
Clerks were being excised, to fill any local positions that were on withholding. The Agency
stated that it was under withholding District-wide until those jobs were filled. We find that the
Agency articulated a legitimate, nondiscriminatory reason for its action.

Complainant argued that management has taken measures to prevent her from becoming a Full-
time Regular Clerk. According to Complainant, the Agency has not posted vacant positions,
allowed clerks to be excised into unposted jobs and utilized non-clerks to perform clerk duties.
These arguments do not establish that the Agency’s explanation was pretext intended to hide
discriminatory intent. Complainant was behind three other Part-time Flexibles in seniority
who also have not been converted to full-time employees. Complainant has not presented
persuasive evidence that her non-conversion was attributable to race discrimination or reprisal
rather than the provisions of the collective bargaining agreement and the needs of the Agency
during a period when the Atlanta District was in a withholding status.

CONCLUSION
For the reasons set forth above, we AFFIRM the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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.

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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), at 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 77960, Washington, DC 20013. 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

(S0610)
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court does not extend your time in which to file a civil action. Both the request and
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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

Date
August 22, 2014