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