01a00762
03-07-2000
Linda P. Adams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.
Linda P. Adams, )
Complainant, )
) Appeal No. 01A00762
v. ) Agency No. 1G-701-0039-97
) Hearing No. 270-99-9064X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), and sex (female),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges she was discriminated
against when she was not selected as an Office Machine Operator position.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a Mailhandler at the agency's
New Orleans Processing & Distribution Center, filed a formal EEO
complaint with the agency on March 28, 1997, alleging that the agency
had discriminated against her as referenced above.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Finding there were no material
facts in dispute, the AJ issued findings and conclusions without a
hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of sex
and race discrimination because the similarly situated employee, not
in her protected classes, was selected for the Office Machine Operator
position, and she was not.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that agency
officials mistakenly referred the selectee for the position because
of a misrepresentation of the testing requirements of the position.
The AJ found that Test 710 for clerical abilities was required for the
position. Although complainant had taken the test, the selectee had not.
Complainant's supervisor averred in her affidavit that based upon a
review of postal bulletins and discussions with personnel officials,
she believed the selectee was qualified for the position. After further
investigation, however, it was determined that the selectee was not
qualified for the position. Agency officials conceded they made a
mistake during the selection process.
The AJ found, however, that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found
that complainant failed to offer sufficient evidence that the agency
discriminated against her based on a prohibited motive.
The AJ also noted that once the agency determined the selectee was
not qualified for the position, he was removed from the position.
The position was posted again, and complainant was selected for the
position.
On September 23, 1999, the agency issued a final decision adopting the
AJ's finding of no discrimination. On appeal, complainant contends the
AJ should not have issued a decision without a hearing. She contends the
original selectee for the position was not qualified for the position,
and that she has been the victim of prohibited discrimination.
After a careful review of the record, the Commission finds that the AJ's
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present sufficient evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race
or gender. We also note there was no dispute in the record that the
agency erred when the selectee was chosen for the position. Complainant,
however, failed to present sufficient evidence that would establish a
genuine issue of material fact as to whether the agency's mistake was
a pretext for discrimination. Therefore, after a careful review of the
record, including complainant's contentions on appeal, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final agency decision.
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:
March 7, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.