Jackie M. Linton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionOct 16, 2000
01990932 (E.E.O.C. Oct. 16, 2000)

01990932

10-16-2000

Jackie M. Linton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Western Area), Agency.


Jackie M. Linton v. USPS

01990932

October 16, 2000

.

Jackie M. Linton,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Western Area),

Agency.

Appeal No. 01990932

Agency No. 1E982001297

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 Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. <1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleged that she was discriminated against on the bases of

race (African-American) and retaliation (prior protected activity) when

the agency refused to assign her to the Loose-in-the-Mail (LIM) Unit.

The record reveals that during the relevant time, complainant was

employed as a Parcel Post Distribution Machine Clerk at the agency's

Seattle, Washington Bulk Mail Center. Believing she was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on August 14, 1997. 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. Complainant requested that the agency issue a

final decision. In its final decision, issued on November 6, 1998, the

agency concluded that complainant failed to establish discrimination on

the basis of her race or in retaliation for her prior protected activity.

From this decision complainant now appeals.

BACKGROUND

In 1994, the agency hired complainant to a rehabilitation position

identified as a Parcel Post Distribution Machine Clerk. Complainant, who

suffered from various impairments, did not work from May 25, 1996 until

August 21, 1996, when she complained that her duties caused her pain.

The record also indicates that complainant did not work from August 26,

1996 until May 1997. Meanwhile, on January 3, 1997, complainant requested

to fill a vacancy in the LIM unit. The agency responded on April 22, 1997,

denying complainant's request. On May 10, 1997, complainant returned

to her position with certain medical restrictions. On May 24, 1997,

the agency placed a Caucasian male, with no prior protected activity

(CW1), into a rehabilitation position in the LIM unit.

Complainant's second level supervisor (MDO) states that in November 1996,

an employee retired from a position in the LIM unit. MDO indicates that

he decided not to replace the retiring employee because the LIM unit

could meet his expectations with the remaining staff. MDO indicates

that complainant, therefore, was not selected to work in the LIM unit.

According to MDO, he thereafter reversed his decision when it became

clear that the LIM unit required additional staff. MDO selected CW1 to

fill the position. MDO indicates that he did not consider complainant

available for the position because she, by that time, was able to return

to her original assignment.

ANALYSIS AND FINDINGS

Complainant argued that her non-selection for the LIM unit was

based on her race and in retaliation for engaging in EEO activity.

We have considered complainant's arguments that she was retaliated

and/or discriminated against. These allegations constitute claims

of disparate treatment employment discrimination.<2> As such, they

must be analyzed under the tripartite analysis enunciated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron Inc., 600

F.2d 1003 (1st Cir. 1979) 3 , Prewitt v. United States Postal Service,

662 F. 2d 292 (5th Cir. 1981), Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318,324 (D. Mass.), affirmed,

545 F.2d 222 (1st Cir. 1976) and Texas Department of Community Affairs

v. Burdine, 4.50 U.S. 248, 253 (1981). We will assume for purposes of

our analysis that complainant was able to establish prima facie cases of

discrimination and retaliation. Therefore, we will focus on whether the

agency's explanations for its actions were a pretext for discrimination

or retaliation. Burdine, 450 U.S. at 253.

The agency indicates that complainant was not selected to the LIM unit

because, at that time, the unit was capable of completing its work

without additional staff. Thereafter, upon realizing that the LIM unit

was understaffed for its volume of work, MDO assigned CW1 to the LIM.

MDO maintains that he was unaware that complainant wanted or needed a

new assignment at the time he assigned CW1 to the LIM unit.

It is complainant's burden to demonstrate by a preponderance of the

evidence that the agency's action was based on prohibited considerations

of discrimination, that is, its articulated reason for its action

was not its true reason but a sham or pretext for discrimination and

retaliation. Texas Department Of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502

(1993). The complainant fails to rebut the reasons proffered by the

agency. Moreover, complainant fails to offer any reason to believe

that her non-selection was a result of discrimination or retaliation.

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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

October 16, 2000

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The Commission has held that a complainant may allege discrimination

on all applicable bases, including sex, race, national origin, color,

religion, age, disability and reprisal, and may amend his or her complaint

at any time, including at the hearing, to add or delete bases without

changing the identity of the claim. See Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (5th Cir. 1970); Dragos v. United States Postal Service,

EEOC Request No. 05940563 (January 19, 1995). We note that after the FAD

was issued, complainant alleged that she was denied an accommodation

for her disability. However, we do not reach the accommodation issue

because complainant raised this basis for the first time after the FAD

was issued and because, we find that such an inquiry changes the identity

of the instant claim. Complainant may seek EEO counseling regarding

the alleged accommodation issue.