0120092824
11-24-2009
Kathleen Joyce, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathleen Joyce,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092824
Agency No. 1B-041-0008-08
Hearing No. 520-2009-00060X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 20, 2009 final action 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant, a former employee and job applicant, alleged that the
agency discriminated against her on the bases of sex (female), disability
(shoulder), age (over 40) and in reprisal for prior EEO activity when:
on March 20, 2008, she was not selected for a Mail Handler position at
the Southern Maine Processing & Distribution Center.
The record reflects that a hearing was held before an EEOC Administrative
Judge (AJ). After considering the testimony of the witnesses, the
AJ determined that complainant did not establish a prima facie case
of disability and reprisal discrimination.1 The AJ found, however,
complainant established a prima facie case of sex and age discrimination
with regard to her non-selection. The AJ nonetheless found that the
agency articulated legitimate, nondiscriminatory reasons for complainant's
non-selection which complainant failed to show were a pretext.
The AJ noted that a review of complainant's application showed that
she had a pattern of seasonal and sporadic employment with periods of
unemployment varying in length from two months to nine months, a criminal
conviction for leaving the scene of an accident, and a discharge by
another employer.
The AJ noted that according to one of the two agency officials (A1) who
made the hiring decisions, he had serious concerns with complainant's
driving conviction. Specifically, A1 stated that complainant "left the
scene of an accident . . . Safety is a big time issue with us and we've
got motor vehicles - - I mean not motor vehicles, powered industrial
vehicles in the plant, we've got other kinds of equipment that if we
hired you, you would have to use and it calls into question whether
or not you would report an accident you're involved in." Furthermore,
A1 stated that complainant's sex, disability, age and prior protected
activity were not factors in his determination to terminate him during
his probationary period.
The AJ further noted that management witnesses were able to distinguish
its treatment of complainant from its consideration of other applicants.
For example, complainant alleged two other named selectees also had
erratic work history based on unemployment. However, the AJ noted that
A1 stated that one of the two selectees had a history of 28 months
of unemployment because "he stayed at home to take care of his child
and that's much more common today than it was when I was growing up."
A1 further stated that he considered the other selectee was a stay-at-home
mother for four years.
The AJ further noted that the other hiring official (A2) stated that
one of the selectees began her interview by telling him she had a police
record. Specifically, A2 testified that during her interview, a female
selectee explained she was shopping at a store and had a cart full of
articles and paid for the items at checkout but had an article on the
bottom of her cart for which she forgot to pay. A2 further testified
that the female selectee stated the incident was a mistake and she was
remorseful. Furthermore, A2 stated that he did not consider the female
selectee's incident to be as serious in nature as complainant's offense.
On appeal, complainant argues that the AJ erred in finding no
discrimination. Complainant argues that the AJ "did not afford me the
opportunity to present all witnesses who had first hand knowledge of
the facts. The only witnesses I was allowed were the same four witnesses
that [named agency attorney] had also requested." Complainant further
restates her argument that several of the selectees "had erratic work
histories, short jobs in duration, been fired and two were convicted of
criminal charges."
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 a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
Complainant has not provided any persuasive argument regarding the
propriety of the AJ's finding of no discrimination. The Commission
determines that the AJ made a thorough and detailed analysis in her
final decision.
Therefore, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final action because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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 24, 2009
__________________
Date
1 The Commission presumes for the purposes of analysis only, and without
so finding, that complainant is an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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