01A23916_r
12-08-2003
Lina S. Siam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lina S. Siam v. United States Postal Service
01A23916
December 8, 2003
.
Lina S. Siam,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23916
Agency No. HO-0111-99
Hearing No. 370-A0-X2390
DECISION
Complainant appeals from the agency's final order dated June 6,
2002, finding no discrimination. Complainant claimed that the agency
discriminated against her on the bases of race (Asian/Pacific Islander),
national origin (Philippines), and sex (female) by denying her a detail
to an EAS-21 position in April of 1999. The agency investigated her
complaint and thereafter referred the matter to an EEOC Administrative
Judge (AJ), who held a hearing and issued a decision finding no
discrimination on April 29, 2002. The agency issued its final order on
June 6, 2002, in which it fully implemented the AJ's decision.
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 discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The agency's stated reason for not selecting complainant for the EAS-21
detail is that neither the selecting official, who was complainant's
second-line supervisor, nor the recommending official, who was
complainant's first-line supervisor, believed that complainant was
interested in or qualified for the EAS-21 position. Complainant had not,
at any time, expressed an interest in obtaining managerial experience.
In addition, both supervisors, as well as the recommending official's
predecessor, had observed that complainant and another team leader
had been unable to get along since 1993, and that their antagonistic
relationship had adversely affected the morale of their respective teams.
The selectee, however, was in a lower-graded position than complainant,
had expressed an interest in upward mobility to the recommending official,
and had good interpersonal skills as well as an overall knowledge of
the office.
On appeal, complainant argues that the AJ erred in denying her request
to reverse the agency's dismissal of a harassment claim comprising 39
incidents that occurred before the instant matter arose, and that in
so doing, the AJ deprived complainant of the opportunity to establish
that the agency's articulated reasons for denying her the detail were
pretextual. Complainant has not presented any argument or evidence
that any of the dismissed incidents occurred within the 45-day period
preceding her initial contact with the EEO counselor. See 29 C.F.R. �
1614.107(a)(2). Furthermore, we agree with the AJ (and the agency) that
the dismissed incidents concerning harassment were separate in nature
from the alleged denial of detail claim, which is a discrete incident.
Therefore, we agree that these incidents were properly dismissed for
untimely EEO Counselor contact.
The agency's decision finding no discrimination regarding the denial of
a detail and the agency's decision dismissing the remaining portion of
the complaint alleging harassment is AFFIRMED.
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:
December 8, 2003
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date