0120091507
07-01-2009
Gladys E. Paz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gladys E. Paz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091507
Agency No. 4A-006-0081-07
Hearing No. 510-2008-00076X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 9, 2009 final action concerning her equal
employment opportunity (EEO) complaint alleging 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.
Complainant alleged that the agency discriminated against her on the
bases of age (59) and in reprisal for prior EEO activity when:
on April 23, 2007, she was notified that she was not selected for the
position of Human Resources Specialist, EAS-16, and that the position
would be reposted.
The record reflects that a hearing was held before an EEOC Administrative
Judge (AJ) on September 17, 2008. After considering the testimony of
the witnesses, the AJ determined that complainant did not show by a
preponderance of the evidence that she was discriminated against on the
bases of age and reprisal discrimination. The AJ noted that according
to the selecting official (SO), he did not select complainant for the
position of Human Resources Specialist because he was not fully satisfied
with her after the interview and that her responses did not meet the
expectations of the agency. The AJ further noted that SO determined
that after interviewing complainant and another candidate, he decided
that the subject position should be reposted because he needed a wider
pool of candidates.
Further, the AJ noted that after the subject position was reposted, SO was
on detail so the Acting Labor Relations Manager was the assigned selecting
official (SO1). Following the interviews, SO1 selected the selectee
because she was best qualified. The AJ noted that while the record
does not support a finding that complainant was a superior candidate,
the selectee was downgraded to the subject position and had previous
experience with grievances and giving discipline to employees. The AJ
further noted that although SO1 testified that none of the candidates,
including complainant, were subject matter experts, he considered the
selectee had the necessary skills required for the subject position.
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 a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
On appeal, complainant has not provided any persuasive argument regarding
the propriety of the AJ's finding of no discrimination. The Commission
determines that the AJ made a thorough and detailed analysis in her
final decision.
Therefore, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final action because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 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
July 1, 2009
__________________
Date
2
0120091507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091507
5
0120091507