01995770
01-16-2002
Paulette Townsend, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Paulette Townsend v. United States Postal Service
01995770
January 16, 2002
.
Paulette Townsend,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01995770
Agency No. 1D-271-0006-97
Hearing No. 140-97-8353X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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 her sex (female), and disability (hearing impairment) when:
(1) On October 14, 1996, she was terminated for unsatisfactory
attendance; and
On September 13, 1996, she was made aware that she had been rejected
for career hire a few months back.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that, at the relevant time, complainant was employed
as a Casual Clerk at the agency's Greensboro, North Carolina, Processing
and Distribution Center. On February 6, 1997, she filed a formal EEO
complaint with the agency, alleging that the agency had discriminated
against her as referenced above. 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 sex and disability discrimination. Specifically, the AJ found that
although complainant established that she is a member of a protected
group with regard to both sex and disability, she failed to demonstrate
that similarly situated employees, not in her protected classes, were
treated differently under similar circumstances. The AJ further concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. The AJ found that complainant was terminated because of
her unsatisfactory attendance record, and that the agency failed to
hire her for a career position because of her supervisor's negative
recommendation. 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. In reaching this conclusion, the AJ
addressed complainant's argument that some of her absences may have been
due to a Family Medical Leave Act (FMLA) covered condition. The AJ found
that complainant failed to prove pretext since she offered no evidence
that agency officials disparately applied the provisions of the FMLA to
males or non-disabled persons. As to the claim regarding hiring, the
AJ found that the record supports the supervisor's conclusions in his
recommendation as to why complainant was not suitable for career hire.
In failing to find pretext, the AJ also relied on the evidence of record
that a female with a hearing impairment was given career hire at the
same time that complainant was rejected. The agency's final decision
implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final 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). In the instant case, the Commission finds
that the AJ's conclusion is supported by substantial evidence.
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 motivated
by discriminatory animus toward complainant's sex or disability.
We discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including arguments and evidence not
specifically addressed in this decision, we affirm the agency's final
decision.
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 16, 2002
__________________
Date
1 The 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.