01997246
12-12-2000
Loretta Bracey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southwest Area), Agency.
Loretta Bracey v. United States Postal Service
01997246
December 12, 2000
.
Loretta Bracey,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01997246
Agency No. 1G-781-0060-97
Hearing No. 360-98-8569X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against on
the bases of race (African-American), color (Black), sex (female), age
(48 at the time), or reprisal (prior EEO activity), when on, April 24,
1997, she learned that she was not selected for the Laborer Custodial
position at Heritage Station.
The record reveals that complainant, then a Laborer Custodian at the
agency's General Mail Facility, San Antonio, Texas facility, filed
a formal EEO complaint with the agency on August 26, 1997, alleging
that the agency had discriminated against her as referenced above.
On January 14, 1997, complainant submitted a preference sheet, know as a
PAR (Preferred Assignment Sheet), to the Manager of Maintenance. Therein,
she indicated, among other things, that her first preference for vacant
custodian positions was the Heritage Station position. On April 21,
1997, a Notice of Intent to fill a Laborer Custodian position vacancy
at Heritage Station was posted. The record further reveals that all
Maintenance positions through the PAR system are filled on the basis of
seniority.
Complainant alleged that when she first spoke to the Supervisor,
Maintenance Operations about the Heritage Station position, he informed
her that no one else had volunteered for the position. She also testified
that after that conversation, the Supervisor informed her that someone
else volunteered for the Heritage Station position, and that complainant
would not be awarded the position.
Complainant testified that a co-worker informed her he had overheard
the Supervisor of Maintenance Operations solicit another co-worker
(Caucasian, male, age 56), who was the ultimate selectee for the position,
to apply for the Heritage Station position. Complainant alleged that
the Supervisor, Maintenance Operations, asked the ultimate selectee to
apply for the position in order to avoid selecting her for the position.
Complainant conceded that the ultimate selectee for the position had a
higher seniority date than her seniority date.
Complainant also alleged that when the selectee was chosen for the
Heritage Station position, she should have been selected for his (now
vacant) position at the Leon Valley Station, since her PAR listed Leon
Valley Station as her third choice. Furthermore, the record revealed she
had a higher seniority than the selectee for the Leon Valley position.
The record reveals, however, that complainant was eventually awarded
the Leon Valley position, once it was determined that the Manager
of Maintenance Operations mistakenly awarded the position to another
applicant with less seniority than complainant.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination. Specifically, the AJ found that the selectee
for the position was older than complainant. However, the AJ did
conclude that complainant established a prima facie case of race, color
and gender discrimination because the selectee, not in her protected
classes, was selected for the position, and she was not. The AJ also
found complainant established the requisite causal connection between
her prior EEO activity and her nonselection here, such that an inference
of reprisal discrimination was established.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
Supervisor of Maintenance Operations denied soliciting other custodians to
apply for the Heritage Station position. Specifically, he denied calling
the selectee and urging him to submit his paperwork, as complainant
alleged. Furthermore, the selectee for the position corroborated this
testimony, and denied that the Supervisor, Maintenance Operations called
him and encouraged him to apply. The Manager of Maintenance Operations
confirmed that the successful bidder for the Heritage Station position was
the selectee because he had more seniority than complainant. Furthermore,
he explained the Leon Valley position was mistakenly awarded to another
selectee, but ultimately, complainant was awarded the position once the
error was determined.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ
found that complainant's witness, who testified that he overheard the
Supervisor, Maintenance Operations encourage complainant's co-worker
to apply for the position, was not credible. In that regard, she found
his affidavit was vague and unspecific. The AJ also found his testimony
at the hearing was more thorough, but inconsistent with his affidavit.
In sum, the AJ found his testimony was not reliable. As such, the AJ
determined that the selectee was chosen for the position because he had
more seniority than complainant, and complainant failed to establish
sufficient evidence that would persuade her that the Supervisor of
Maintenance Operations encouraged the selectee to apply in order to
discriminate against complainant.
As for the Leon Valley position, the AJ found that the Manager of
Maintenance Operation made a mistake, but later corrected the error by
awarding complainant the position. In that regard, the AJ credited the
Manager's testimony, and also found insufficient evidence of retaliation
or discrimination. In sum, the AJ found complainant failed to establish
she was discriminated against, as alleged.
On August 31, 1999, the agency issued a final decision adopting the
AJ's recommended decision. On appeal, complainant restates arguments
previously made at the hearing. In response, the agency restates the
position it took in its FAD, and requests that we affirm its final
decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
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, color, gender or age.
We discern no basis to disturb the AJ's decision. 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 agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 12, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.