01982819
01-09-2001
Jovaunda Brown v. United States Postal Service
01982819
January 9, 2001
.
Jovaunda Brown,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01982819
Agency No. 1G-754-1042-96
Hearing No. 310-97-5018X
DECISION
Complainant timely initiated an appeal from a final agency decision
(�FAD�) 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> Complainant alleges she
was discriminated against on the bases of race (African-American),
disability (knee injury) and/or in retaliation for prior EEO activity
when the agency in December 1995, allowed a White co-worker, who had
previously been barred from the 204B program, to become a supervisor.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
BACKGROUND
The record reveals that complainant, a Flat Sorter Machine Operator at
the agency's North Texas Mail Processing and Distribution Center, filed
a formal EEO complaint with the agency on February 22, 1996, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation of the complaint, complainant
was provided a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). After a hearing, the AJ issued
a decision finding no discrimination.
Complainant filed the complaint in this matter after she learned that a
White co-worker was promoted to a supervisory position. Like complainant,
the co-worker had been barred from continuing in the 204B supervisor
program because of excessive accidents. The AJ concluded that complainant
failed to establish a prima facie case of discrimination on any basis
in this matter because she did not demonstrate that she was similarly
situated to the co-worker. Specifically, the AJ found that complainant
did not apply for the position in question which was a full-time
supervisor position and not within the 204B program.
On appeal, complainant restates arguments previously made at the hearing.
The agency responds by restating the position it took in its FAD, and
requests that we affirm its FAD.
ANALYSIS
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Even assuming that
complainant established a prima facie case on all bases in this matter,
we conclude that she failed to present sufficient credible evidence
that the agency's action was in retaliation for complainant's prior EEO
activity or was motivated by discriminatory animus toward complainant's
race or disability. The record does not show that complainant applied
for the position in question, nor does it suggest that the agency ever
informed complainant that she could not secure a supervisory position
outside the 204B program. As such, we discern no basis to disturb
the AJ's decision. 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 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
January 9, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.