Edwina P. Brown, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area) Agency.

Equal Employment Opportunity CommissionMar 11, 2004
01A31006r (E.E.O.C. Mar. 11, 2004)

01A31006r

03-11-2004

Edwina P. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area) Agency.


Edwina P. Brown v. United States Postal Service

01A31006

March 11, 2004

.

Edwina P. Brown,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Capital Metro Area)

Agency.

Appeal No. 01A31006

Agency No. 1-K-206-0018-01

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

The record reveals that during the relevant time, complainant was employed

as a Supervisor of Maintenance Operations at the agency's Capitol Heights,

Maryland facility. Complainant sought EEO counseling and subsequently

filed a formal complaint, alleging that she was discriminated against

on the bases of race ("person of color"), national origin (Cape Verde

Islands/Portugese Speaking), sex (female), age (born October 6, 1946),

and in reprisal for prior EEO activity (arising under Title VII) when:

(1) On February 15, 2001, management maintained a hostile environment

by allowing white male subordinate employees to file unfounded EEO

complaints against her with no effective attempt to resolve the

situation; and

On January 31, 2001, the agency failed to interview complainant for

the position of Manager of Maintenance at the Southern Maryland Bulk

Mail Center;

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

In its final decision, the agency dismissed claim (1) for failure

to state a claim, finding that the claim did not render complainant

aggrieved under EEO regulations. Regarding claim (2), the agency found

no discrimination. The agency found that it articulated legitimate,

non-discriminatory reasons for not interviewing complainant for the

position that were not persuasively rebutted by complainant as pretext

for unlawful discrimination or retaliation.

On appeal, complainant contends that claim (1) involves sufficient harm

to the terms and conditions of her employment to render her aggrieved

under EEO regulations and therefore states a claim. Regarding claim (2),

complainant contends that she proved that the agency's proferred reasons

for its action was pretext for unlawful discrimination. Specifically,

she contends that the agency has a pattern and practice of not hiring

or promoting females above the EAS-15 level.

The record reveals that June 20, 2000, the agency posted Vacancy

Announcement 06046 for the position of Manager of Maintenance Operations

at the Capitol Heights, Maryland facility. The position was re-posted on

December 5, 2000, with a closing date of December 20, 2000. Complainant

and eleven other individuals applied for the position. A review

committee met to consider the applications of the twelve candidates and

recommended five applicants for an interview. The demographic breakdown

of the five applicants is as followings: (1) African-American male, born

December 16, 1962, with prior EEO activity (C1); (2) African-American

male, born January 15, 1950, with prior EEO activity (C2); (3) White

German-American male, born June 15, 1954, with prior EEO activity (C3);

(4) Caucasian-American male, born August 17, 1953, no prior EEO activity;

and (5) Indian male, born January 26, 1951, with prior EEO activity (C4).

After the interview, the selecting official selected C1 and C4.

The record contains a copy of the Vacancy Announcement for the position

of Manager of Maintenance Operations. The announcement states that the

position involves management of all maintenance operations on a tour in a

major automated/mechanized mail processing facility, including building

and mail processing equipment and systems building services functions.

The position requirements include knowledge of building and equipment

maintenance methods and practices; knowledge of the national labor

agreement; the ability to evaluate maintenance and repair problems;

the ability to provide technical advice on installation, modification,

and repair of mail processing or building system equipment, and; the

ability to manage the planning of preventative and corrective maintenance

and project work.

As a preliminary matter, we note that we review the decision on an appeal

from a final agency decision de novo. 29 C.F.R. 1614.405(a). Accordingly,

we have carefully reviewed the entire record before us in our attempt to

discern whether a preponderance of the evidence warrants a modification

of the agency's ruling. See 29 C.F.R. 1614.405(a).

Claim 1

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

In claim 1, complainant contends that the agency subjected her to unlawful

discrimination when it allowed white male subordinate employees to file

unfounded EEO complaints against her. The Commission has previously

held that the filing of an EEO complaint by another individual does not

constitute an injury by the agency to a term, condition or privilege

of employment. To allow the processing of a complaint by an employee,

wherein the employee challenges the filing of an EEO complaint by

co-workers or other agency employees, would have a chilling effect on the

filing of EEO complaints by aggrieved persons. See Blinco v. Department

of the Treasury, EEOC Request No. 05940194 (May 25, 1994). We have

also held that such a complaint constitutes a collateral attack on

another EEO matter. See Smith v. Department of Veterans Affairs, EEOC

Request No. 059506945 (April 4, 1996). Moreover, there is no remedial

action available to complainant when another individual files an EEO

complaint, as the agency has no authority to restrain an employee from

raising EEO violations through the EEO complaint process. See Calloway

v. Department of the Army, EEOC Appeal No. 01943406 (July 15, 1994);

Sherwood v. Department of the Army, EEOC Appeal No. 01941846 (June 3,

1994). Accordingly, we affirm the agency's dismissal of claim 1.

Claim 2

Although the initial inquiry in a discrimination case usually focuses on

whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when, as here, the agency has

articulated a legitimate, nondiscriminatory reason for its actions.

See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May

31, 1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether s/he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this matter, the agency responded that complainant was not interviewed

for the Manager of Maintenance Operations position because her application

answers did not demonstrate that she had critical Mail Processing

Equipment experience to the same extent the recommended candidates'

applications indicated. The agency stated that complainant's application

focused on custodial operations instead of relevant mail processing

equipment. Complainant contends that the agency's reason is pretext for

unlawful discrimination because the agency has a pattern and practice of

failing to train female employees and promote them to the EAS-15 level.

We find that complainant failed to provide evidence to support this

claim beyond her bare assertion, such as specific instances where other

qualified female employees were not selected for EAS-15 level positions.

Complainant further contends that evidence of pretext is found in the

fact that she was detailed to the position of Manager of Maintenance

Operations for about eighteen months. However, a review of the record

reveals that four out of the five persons interviewed and both selectees

also had significant experience as Manager of Maintenance Operations.

Consequently, we find that complainant failed to persuasively rebut

the agency's legitimate, non-discriminatory reason for not interviewing

complainant for the Manager of Maintenance Operations position.

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 final agency

decision.

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

_March 11, 2004_________________

Date