01a00344
02-11-2000
Karen R. Twilley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid West Areas), Agency.
Karen R. Twilley, )
Complainant, )
) Appeal No. 01A00344
v. ) Agency No. 4J-604-0166-97
) Hearing No. 210-99-6282X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Great Lakes/Mid West Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and race (Black), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges she was discriminated against when her request for
reassignment submitted on or about May 23, 1997, was denied. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Full Time Distribution Clerk, at the agency's North Suburban
Processing/Distribution Center, Chicago, IL facility. Complainant
alleged that on or about May 23, 1997, she requested reassignment to a
facility closer to her home due to her son's serious health condition.
Complainant alleged that the agency denied her request on July 21, 1997.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently filed a complaint on January 5, 1998. At
the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a Recommended Decision finding no discrimination.
In her decision, the AJ determined that complainant failed to establish
a prima facie case of discrimination on any bases in that she failed to
show that she suffered an adverse action. Specifically, the AJ found that
complainant's transfer request was approved, and her name was placed on
the waiting list. Complainant was thereafter offered a Part Time Flexible
position, which she declined. At the time of the hearing, complainant
had not been taken off the waiting list for a Part Time Regular position.
The AJ also found complainant failed to prove that the agency officials
involved in her transfer request were aware that she was a Black female.
Lastly, the AJ determined complainant failed to show that the agency's
delay in processing complainant's request was tantamount to a constructive
denial, as she alleged. The AJ was persuaded that complainant's request
was processed in a relatively reasonable amount of time, and was due to
a �backlog� of transfer requests to that facility.
Although complainant argues that non-Black males were hired as Part
Time Flexible clerks after complainant submitted her transfer request,
the AJ found complainant failed to present any evidence to establish
that these individuals were similarly situated to her. Specifically,
complainant failed to provide evidence that showed these individuals were
outside of her protected classes; that they requested and were approved
for reassignment; or that their transfer requests were approved in a
more expedient manner than complainant's request was approved.
Neither the agency nor complainant submitted contentions on appeal.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist 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 Recommended Decision summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We therefore discern no basis to disturb the AJ's Recommended
Decision.
The Commission agrees with the agency that complainant failed to establish
a prima facie case of race or sex discrimination because she failed to
establish she suffered an adverse action. In reaching this conclusion,
we note that complaint's request was approved, but that she declined a
flexible position. Complainant was then placed on a waiting list.
The Commission also agrees that complainant failed to present evidence
that showed that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. In reaching this
conclusion, we note that although complainant's request may have taken
more time than she would have preferred for processing, she failed to
provide any evidence that would establish the request was not immediately
approved for discriminatory reasons.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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
________________________
Equal Employment Assistant 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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.