0120081702
08-14-2008
Karen M. Warner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karen M. Warner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081702
Hearing No. 450-2007-00124X
Agency No. 1G-761-0099-06
DECISION
Complainant filed an appeal from a January 14, 2008 final agency order,
concerning her equal employment opportunity (EEO) complaint alleging
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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).
In 2005, complainant worked casual appointments at the Amarillo,
Texas processing and distribution center of the agency. In April
2006, complainant interviewed for a part-time flexible (PTF) mail
processing clerk position at the Amarillo facility. On September 20, 2006,
complainant filed an EEO complaint alleging that the agency discriminated
against her on the bases of sex (female), age (over 40), and reprisal
for prior protected EEO activity when, in May 2006, it failed to select
her for a PTF clerk position and informed her that she would no longer
be considered to fill such positions at the Amarillo facility.
During the agency's investigation, a Manager of Distribution Operations
(S1) stated that she was a member of the PTF clerk selection committee,
interviewed several candidates from a hiring roster, and recommended
complainant for hire. S1 stated that candidates are listed on the hiring
roster based on their exam score; and they are removed from the roster
once their name is reached three times, they are considered against two
candidates within score range, and they are not selected. S1 referred to
the procedure as "rule of three." S1 noted that complainant was compared
to a candidate outside of her protected classes (C1) and C1 was selected
over complainant based on preferable work history and criminal record.
A Human Resources Specialist (S2) supported S1's contention about the
"rule of three," and stated that the selections were later audited and
found correct by Human Resources. S2 added that the hiring register lists
candidates based on their battery exam scores and veteran's preference.
S2 stated that 18 candidates were chosen.
At the conclusion of its investigation, the agency provided complainant
with a copy of the report of investigation and notice of right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined that genuine
issues of material fact do not exist to warrant a hearing and issued a
decision without a hearing on January 9, 2008. Specifically, the AJ found
that complainant failed to show that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were pretext. The AJ
noted that the selection committee considered the hiring roster as well
as work and criminal records. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
The instant appeal from complainant followed. On appeal, complainant
stated that, pursuant to a settlement agreement for prior EEO complaint
number 1G-761-0030-06, her prior work record should not have been
considered in the instant selection process. Further, complainant stated
that S1 was a responsible management official for the prior complaint
so should not have been on the selection committee here, and that S1
provided contradictory statements.
In the instant matter, we find that the issuance of a summary
judgment decision was appropriate and complainant failed to prove,
by a preponderance of the evidence, the agency's explanations are
a pretext for discrimination. Complainant failed to show that the
agency's actions were based on discriminatory factors. Further,
regarding complainant's allegation of breach as to 1G-761-0030-06,
that matter can not be addressed by the instant appeal. In accordance
with 29 C.F.R. � 1614.504(a), complainant may file a written notice
of alleged noncompliance with the appropriate agency EEO Director.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 14, 2008
__________________
Date
2
0120081702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081702