01980684
04-07-2000
Layne M. Bailey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Layne M. Bailey v. United States Postal Service
01980684
April 7, 2000
Layne M. Bailey, )
Complainant, )
) Appeal No. 01980684
v. ) Agency No. 4E870003197
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal from final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of color (White), sex (female), reprisal (prior EEO activity),
and mental disability (manic depression), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et
seq.<1> Complainant claims that she was discriminated against when
her application was deemed ineligible and she was not selected for the
Postmaster position (Position) at the Bent, New Mexico Post Office.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the reasons that follow, the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as a Postmaster Relief at the agency's Alto, New Mexico, Post Office.
Complainant claims that she submitted an application for the Position when
it was first advertised "internally" in February 1996, and again in April
1996 when it was advertised "externally." She contends that she is far
better qualified for the Position than the selectee (SE) who was only
an Officer-In-Charge at the Bent, New Mexico Post Office, but that she
was not selected because the responsible selecting officials retaliated
against her for an EEO complainant she had recently filed against them.
She also claims that she was not selected due to her mental disability,
color and sex.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, the agency issued its FAD finding no discrimination.
On appeal, complainant claims that she was eligible for the Position
because she was exercising her right of self nomination, and submits
a copy of personnel regulations on this point.<2> The agency requests
that we affirm its FAD.
The FAD concluded that complainant failed to establish a prima facie
case of color, sex, or disability discrimination, but even if she had,
the agency articulated legitimate, nondiscriminatory reasons for its
decision which were not shown to be pretextual. Specifically, the
FAD found that complainant's application for the "internal" vacancy
announcement was ineligible because she was not a career employee and
was not the Postmaster Relief at the Bent Post Office. The FAD further
found that complainant's application for the "external" announcement
was ineligible for failing to satisfy the local residency requirement.
As a preliminary matter, we note that the FAD failed to address
complainant's reprisal claim, which she clearly set forth throughout the
processing of this complaint. Therefore, finding the evidence of record
sufficient to do so, we will address this claim herein, and CLARIFY the
FAD accordingly.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981), the Commission initially agrees
with the agency that complainant failed to establish a prima facie case of
color, sex, or disability discrimination.<3> In reaching this conclusion,
we note that complainant failed to provide evidence that any non-eligible
candidates were considered for selection, or that her non-selection
was motivated by discriminatory animus. Instead, complainant merely
asserts that she "believes" she was not selected because of her color,
sex, and disability, providing no evidence to substantiate this belief.<4>
We further find that complainant failed to establish a prima
facie case of reprisal under the standards set forth in Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). In so finding, we note that the
individuals she identifies as the selecting officials had only cursory
administrative involvement in the selection process, and neither were
the selecting or approving officials for this vacancy. Moreover, the
record shows that the eligibility criteria were set at Headquarters,
and the local personnel office had no opportunity to "manipulate" these
criteria to exclude complainant's application from being considered.
Therefore, we find that complainant has failed to establish that there
was a causal connection between complainant's protected activity and
her failure to be selected for the Position.
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 FAD as
CLARIFIED.
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:
April 7, 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.
2We note that complainant is relying on a provision which states that
employees "reassigned to another office" who have "retreat rights"
are eligible in the "office of origin when the postmaster position is
vacant." However, according to complainant's employment application,
it does not appear that she was ever stationed at the Bent Post Office,
so she could not have "retreat rights" to this Post Office, and as such
is not eligible for the Position under this provision.
3The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV
4In fact, complainant and SE are both female.