01995120
01-29-2002
Levietta T. Hayes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Levietta T. Hayes v. United States Postal Service
01995120
January 29, 2002
.
Levietta T. Hayes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995120
Agency No. 1D-292-0002-96
Hearing No. 140-97-8240X
DECISION
Levietta T. Hayes (complainant) timely filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from a final agency
decision (FAD) dated May 6, 1999, concerning her complaint alleging
that she was discriminated against on the bases of her race (Black),
sex (female), and reprisal (for recruiting employees to join a union)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Accordingly, the appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that complainant was a transitional employee who
worked as a Data Conversion Operator at the agency's Remote Encoding
Center in North Charleston, South Carolina. Complainant alleged that
the agency discriminated against her as referenced above when she was
informed on May 28, 1996<1> that she was separated from the agency
because she falsified her job application. Specifically, complainant
had two convictions for writing bad checks, but only disclosed one on
her application; additionally, complainant did not include that she
filed a false affidavit for employment benefits which resulted in an
overpayment of $144.00. Complainant believed that the true reason she
was separated was because she was a black female who strongly believed
in the union and actively recruited people to protect their rights.
Complainant alleged that during orientation, the Responsible Management
Official (RMO) told her not to join the union, but that she did so in
spite of this statement. Complainant also alleged that it was apparent
that management catered to the male employees who were given special
concessions and in general, were treated much better than the females
and were given more supervisory training (204B) opportunities.
In her affidavit, the RMO testified that complainant was a Tour 3 employee
and therefore was not under her direct supervision. Accordingly, she
did not have any involvement or role in complainant being separated for
the agency. The RMO further testified that she was not aware of any other
transitional employees that were separated for the same or similar offense
as complainant. She denied telling complainant not to join the union.
Instead, she stated that during orientation, transitional employees were
advised to refrain from payroll deductions for savings bonds, the Combined
Federal Campaign, union dues, and other allotments, until after they had
completed and qualified on the 42 hours of Computer-Based Training that
was required. The RMO also testified that she had no definite knowledge
as to whether complainant was or was not a member of the union, and that
she would not treat anyone unfairly because that person was a member of
the union.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on August 1, 1996.
The complaint was accepted for investigation. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of retaliation as she had no prior record of EEO activity at the time she
was separated from the agency. Further, the AJ found that although the
complainant may have recruited people to join the union, she provided
no specific evidence to establish that she opposed any discriminatory
practices or that she actually engaged in grievance activity containing
discrimination allegations. As for complainant's claims of race and
sex discrimination, the AJ found that while complainant demonstrated
that she was a member of the protected groups as she was a Black female,
she did not demonstrate that a similarly-situated employee outside of her
protected group was treated more favorably than she, nor did she present
any other evidence from which to establish an inference of discriminatory
animus. Further, the AJ denied complainant's request through her
attorney, that an adverse inference be drawn against the agency when it
failed to provide comparator information. The AJ found that there was
no evidence that complainant's attorney revised her discovery request to
make it less burdensome and/or more relevant in light of the agency's
objections. Additionally, the AJ found that complainant's attorney
never filed a motion to compel a response to the discovery request,
nor any of the other requests to which the agency objected.
The AJ further concluded that assuming, arguendo, that complainant
established a prima facie case of discrimination based on race, sex or
reprisal, the agency provided a legitimate, nondiscriminatory reason for
the complainant's termination. Specifically, complainant was separated
as a direct result of the Postal Inspection Service's investigation,
which revealed an unacceptable criminal record. The AJ then reviewed
complainant argument that the agency's articulated reason was a
pretext for unlawful discrimination. Complainant's attorney argued that
complainant was truthful on her application as to the bad checks and her
conviction on her application, and that there was uncontroverted evidence
that complainant repaid the overpayment of $144.00 in unemployment
benefits twelve years earlier; and as such, these were not the true
reasons for complainant's termination. Complainant's attorney also
indicated that the bad check did not disqualify complainant from working
at another federal agency for three years prior to her applying to this
agency. Further, complainant argued the RMO helped her to complete the
application and that complainant included everything that the RMO said
she needed. The AJ found however, that complainant was not completely
truthful as to the bad checks. On her application complainant stated that
she �wrote bad check.� In reality, complainant's record revealed she had
two separate convictions. Complainant's application revealed that the
position that complainant held for three years was not a permanent one
as she left it for the �opportunity to become permanent� at the agency.
Moreover, the AJ found that the agency never argued that complainant
accepted an overpayment of unemployment benefits as the reason for her
termination, instead it was because complainant's criminal record was
deemed to be unacceptable. The agency's final decision implemented the
AJ's decision. No statements were submitted on appeal.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race or sex. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review
of the record, including the arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision of
May 6, 1999.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 29, 2002
______________________________
Date
1The record indicates that the notice of separation was effective
May 25, 1996.