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.