Jacqueline Clarke, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity CommissionNov 1, 2000
05980384 (E.E.O.C. Nov. 1, 2000)

05980384

11-01-2000

Jacqueline Clarke, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Northeast Area), Agency.


Jacqueline Clarke v. United States Postal Service (Northeast Area)

05980384

November 1, 2000

.

Jacqueline Clarke,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Northeast Area),

Agency.

Request No. 05980384

Appeal No. 01961375

Agency No. 4B140102095

Hearing No. 160958533x

DENIAL OF REQUEST FOR RECONSIDERATION

On February 23, 1998, Jacqueline Clarke (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Jacqueline Clarke v. United States Postal

Service, EEOC Appeal No. 01961375 (January 28, 1998).<1> EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 29 C.F.R. � 1614.405(b). The party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following two criteria:

the appellate decision involved a clearly erroneous interpretation of

material fact or law; or the decision will have a substantial impact on

the policies, practices or operations of the agency. Id. For the

reasons that follow, the Commission finds that the request fails to meet

the criteria for reconsideration.

BACKGROUND

In the previous decision, the Commission affirmed the agency's adoption

of an EEOC Administrative Judge's (AJ) recommended finding of no

discrimination. Complainant alleged that due to her age (49 at relevant

time) and prior EEO activity, she was not reappointed as a Transitional

Employee Clerk. The AJ, issuing findings and conclusions without a

hearing, determined that complainant failed to establish a prima facie

case of age discrimination or reprisal. The AJ noted that complainant

failed to identify any similarly situated employees outside her protected

groups who were treated more favorably than she and that she did not prove

that she had engaged in prior EEO activity. The AJ went on to note that

even assuming complainant established a prima facie case on either bases,

the agency articulated a legitimate nondiscriminatory reason for failing

to renew complainant's appointment. Specifically, the agency noted that

when complainant's term expired, the facility was attempting to find ways

to save money and because complainant's services were no longer needed,

her appointment was not renewed. The AJ concluded that complainant failed

to establish that this explanation was a pretext for discrimination.

The previous decision affirmed the AJ's findings with little disagreement,

noting only that the AJ was in error when he found that complainant

had not engaged in prior protected activity. The previous decision

found that complainant engaged in protected activity when she notified

management of the fact that several of her coworkers were hitting her

on the backside and asked that such behavior be prevented.

In her request for reconsideration, complainant argues that the AJ's

decision was erroneous. She notes that none of the employees she named

in her affidavit were questioned, despite the fact that she contended

that they would testify to management's discriminatory motivation.

Complainant also alleges that she was not allowed to present evidence

when talking with the AJ, and that the AJ exhibited bias towards the

agency.<2> She argues that her appointment was not renewed due to the

fact that she had reported several coworkers who were sexually harassing

her only a month before her appointment expired.

In response, the agency notes that complainant failed to meet either of

the criteria for reconsideration. It argues that complainant's claim

that she was denied an investigation was considered in the prior decision

when the Commission found that the agency had complied with all procedural

and regulatory prerequisites. The agency asks that complainant's request

for reconsideration be denied.

FINDINGS AND ANALYSIS

After a careful review of complainant's request for reconsideration, the

agency's response and the record as a whole, we find that complainant

failed to establish that the appellate decision involved a clearly

erroneous interpretation of material fact or law; or that the decision

will have a substantial impact on the policies, practices or operations

of the agency. The prior decision correctly held that complainant

failed to establish by a preponderance of the evidence that she was

subjected to age discrimination or reprisal.

In so finding, we first note that the AJ was incorrect in determining that

complainant failed to establish a prima facie case of age discrimination

and reprisal. Complainant established that another Transitional

Employee, under the age of 40 and without prior protected activity, whose

appointment expired a month after complainant, received a renewal. During

the period of the investigation, only the appointments of complainant and

this younger Transitional Employee without prior protected activity (TE),

came up for renewal. In determining that complainant did not establish

a prima facie case, the AJ relied on the fact that the renewal of TE's

appointment took place a month after complainant's appointment was not

renewed. We find, however, that as no appointments ended at the same

time as complainant's, the more favorable treatment of the individual

whose appointment ended soon after complainant is relevant, and raises

an inference of age discrimination. Moreover, only a month before

complainant's appointment was not renewed, complainant complained of

sexual harassment at the hands of several male coworkers and the relevant

management officials were aware of this activity on complainant's part.

Thus, the record also supports an inference of reprisal.

The AJ was correct, however, in finding that the agency articulated a

legitimate nondiscriminatory reason for its actions. The Supervisor

of Customer Service (SCS) at the agency's facility in Jamestown, New

York, testified that in October 1994 he was assigned to the position of

Officer-in Charge, responsible for the overall operation of the facility.

He determined that the Mail Processing division was over budget and began

looking for ways to remedy this problem. In attempting to do so, he told

the supervisors working under him that any temporary or casual employees,

such as Transitional Employees, who were coming up for renewal should

be reviewed to determine whether their appointments should be renewed.

He was told that complainant's renewal date was approaching and, based

on operational needs, determined not to renew her appointment.

Moreover, the AJ correctly determined that there is insufficient evidence

in the record to establish that the explanation provided by SCS is a

pretext to mask discrimination. SCS acknowledged that less than a month

after operational concerns compelled him not to renew complainant's

appointment, the appointment of a younger Transitional Employee without

prior protected activity was renewed. Although he averred that he did

not make the decision to renew TE's appointment, as he was busy with

other work, another supervisor who provided an affidavit noted that SCS

told him to retain TE because they were preparing for the Christmas rush

and had lost one of their casual employees. Although complainant argued

that the proximity in time between the denial of her renewal and the

renewal of a younger employee who had not engaged in protected activity

establishes that SCS was motivated by discrimination, she did not rebut

the agency's explanation that operational needs changed between the end

of October and the end of November, due to the loss of a casual employee

and the upcoming Christmas rush.

Furthermore, while it is true that the witnesses named by complainant

in her affidavit were not interviewed, a review of the record reveals

that the information they would allegedly have provided would not have

established that complainant was subjected to discrimination or reprisal.

In her affidavit, complainant asked that the EEO Counselor be questioned

and alleged that he would state that SCS told him that as each TE came up

for renewal, renewal would be denied until the facility was left with only

4 TEs. As this is not what subsequently occurred, complainant believed

that the Counselor's testimony would support a finding of pretext.

We note, however, that the EEO Counselor's Report is in the record and

describes the conversation between the Counselor and SCS. Therein,

the Counselor noted that SCS stated that complainant's appointment was

not renewed because the facility was overstaffed and complainant's term

was the next one to expire. Testimony of this nature, even if given

in the form of an affidavit, does not establish pretext. Similarly,

even if the other witnesses named by complainant would have testified

as she alleged, she would have failed to establish discrimination.

For example, complainant named two witnesses who allegedly would have

testified that two of the coworkers she reported for harassing her were

very angry with her and indicated that they would like to get her fired.

This does nothing to establish that the agency's articulated reason for

failing to renew complainant's appointment is pretextual. It merely

establishes that individuals who complainant reported held a grudge

against her.

Therefore, we find that the previous decision correctly affirmed the

agency's finding of no discrimination. Complainant failed to establish

that the previous decision involved a clearly erroneous interpretation

of material fact or law or that it will have a substantial impact on

the policies, practices or operations of the agency

CONCLUSION

Accordingly, after a careful review of complainant's request for

reconsideration, the previous decision, and the entire record,

we find that complainant's request fails to meet either of the

criteria for reconsideration. The decision in EEOC Appeal No. 01961375

remains the Commission's final decision. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

November 1, 2000

__________________

Date

1On 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 Complainant argues that her �hearing� was inadequate. We note, however,

that the AJ made his determination without a hearing and conclude that

complainant must be referring to discussions with the AJ as to whether

Summary Judgment would be granted.