Kathleen Joyce, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 24, 2009
0120092824 (E.E.O.C. Nov. 24, 2009)

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.

??

??

??

??

2

0120092824

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120092824

5

0120092824