01997138
12-22-2000
Johnetta Jefferson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Johnetta Jefferson v. United States Postal Service
01997138
December 22, 2000
.
Johnetta Jefferson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01997138
Agency No. 4-I-553-0042-98
Hearing No. 370-99-8129X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 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 alleges
she was discriminated against based on race (Black), sex (female),
age (D.O.B. 11/29/56), and perceived disability (wrist injury) when:
(1) she was denied reappointment as a casual employee; and (2) the
agency subsequently took her off the hiring register, thus denying her
the opportunity to become a career employee. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that complainant was a casual clerk at the agency's
Postal Service Annex in Minneapolis, Minnesota. At the time of the
agency actions challenged herein, complainant was serving her second
consecutive 90-day appointment, which was scheduled to conclude on
December 12, 1997. Complainant had two first-line supervisors, S1
(Black, male, over 40 years of age) and S2 (Caucasian, male, 50 years
of age). On August 29, 1997, S1 evaluated complainant as having
excellent attendance and very good productivity, accuracy, behavior,
and attitude.
On November18, 1997, complainant advised S1 that she had developed a lump
on her left wrist which she thought was from lifting heavy sacks into
bulk mail containers. S1 instructed complainant to complete an accident
report, and she did so. Also in November, 1997, S1 was instructed by
the personnel office to reduce the number of casual employees from 100 to
approximately 46. S1 and S2, together with another colleague, discussed
which employees they thought were the very best, and they contend they
could be particular in this regard because they were charged with making
such a significant reduction in the number of employees. S2 told S1
that he had difficulty with complainant's "wandering," in that she was
not in the area to which she was assigned when he went to look for her,
and always had various excuses, i.e. went to the bathroom, went over
to the mixie desk, helping someone in a different section, and so on.
S2 contended that complainant had friends in the scanner area and would
often go there to visit.<2>
On November 20, 1997, complainant received another evaluation, in which
she was rated very good in attendance, good in productivity, accuracy, and
behavior, and fair in attitude. On November 26, 1997, S1 completed and
signed a two-page form recommending that complainant not be reappointed.
She filed a formal EEO complaint with the agency on July 9, 1998,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on any basis, and that even if she had, she had
not met her burden to demonstrate by a preponderance of the evidence
that the agency's proffered reasons for its actions were a pretext for
discrimination. In reaching this conclusion, the AJ noted that there were
other employees within complainant's protected classes (same race, sex,
or approximate age) whom her supervisors recommended for reappointment.
Additionally, the AJ credited testimony by complainant's supervisors that
they perceived her as having an injury but not as having an impairment
which substantially limited any major life activity within the meaning
of the Rehabilitation Act.
The agency's final decision adopted the AJ's findings and conclusions.
On appeal, complainant contends that the AJ made the following errors:
(1) failed to draw an adverse inference based on the agency's apparent
failure, following the hearing, to produce information regarding how
many of the casual employees not reappointed were nonetheless permitted
to remain on the hiring register; (2) the AJ failed to draw an inference
of discrimination based on evidence that the co-worker alongside whom
complainant worked was retained.
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 discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
In deciding the instant appeal, we do not reach the issue of whether or
not the AJ correctly determined that complainant was not regarded as an
individual with a disability under the Rehabilitation Act. Rather, we
find after a careful review of the record, that even assuming arguendo
complainant has satisfied this element of the prima facie case, she has
not met her burden of proof to establish discrimination by a preponderance
of the evidence on any basis. Although the AJ found that complainant's
supervisor had a poor memory of the relevant events and provided some
inconsistent testimony, the AJ found that even assuming the agency's
proffered reasons were false, she was persuaded that more likely than
not, there was a non-discriminatory motive for the agency's actions.
Specifically, the AJ found probative the undisputed evidence that
the facility had to reduce the number of casual employees from 100
to approximately 46, and therefore had the luxury of retaining only
outstanding casuals, various of whom were within complainant's protected
classes. See Agency Exhibit #2 (matrix of comparators). The AJ further
noted that complainant denies having stated to S1 or S2 that she was
unable to perform certain assignments. Notwithstanding complainant's
evidence, she has not met her burden to prove by a preponderance of the
evidence that the real reason for the agency's challenged actions was
her race, sex, age, or perceived disability. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993) (it is not sufficient to "disbelieve
the employer; the fact finder must believe the plaintiff's explanation
of intentional discrimination") (emphasis in original).
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 22, 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.
2The record further reveals that S2 contends complainant complained that
shoulder pain precluded her from performing various assigned tasks, or
that the sacks she was assigned to lift were too heavy. To the extent
complainant contends S2's testimony therefore evidences discriminatory
animus based on disability, we do not find this argument persuasive on
the particular facts of this case, inasmuch as complainant denies she
ever made these statements. However, we note that as a general matter,
such statements to a supervisor can constitute a request for reasonable
accommodation under the Rehabilitation Act, and while accommodation is
not an issue in this case, the agency is advised to ensure that all its
managers are familiar with their obligations under the Rehabilitation Act
to determine whether an accommodation is sought and if so, to assess the
request in accordance with applicable law, when an employee makes such
statements. See EEOC Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act (March 2, 1999)
("Enforcement Guidance").