01970437
01-29-1999
Rachel Acosta, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western), Agency.
Rachel Acosta v. United States Postal Service
01970437
January 29, 1999
Rachel Acosta, )
Appellant, )
)
v. ) Appeal No. 01970437
) Agency No. 1F-927-1024-95
William J. Henderson, ) Hearing No. 340-96-3436X
Postmaster General, )
United States Postal Service )
(Pacific/Western), )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint alleging that the agency
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.; the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq.; and �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against her on the bases of race (Hispanic), sex (female), reprisal
(prior EEO activity), age (50), and physical disability (arthritis)
when she was not converted from a Casual position to a Transitional
Employee position because she failed the 10-key examination. The agency
accepted appellant's complaint, conducted an investigation, provided
appellant with a copy of the investigative report, and advised appellant
of her right to request either a hearing before an EEOC administrative
judge (AJ) or a final agency decision. Appellant requested a hearing.
A hearing was held on July 23 and August 5, 1996. In a recommended
decision dated August 6, 1996, the AJ found that the agency did not
discriminate against appellant on any bases. The agency subsequently
adopted the AJ's recommended decision in a final agency decision dated
September 27, 1996.
Appellant was formerly employed with the agency as a Casual Clerk, EAS-7,
at the agency's Santa Ana Processing and Distribution Center. Appellant
worked as a Casual Employee for six months each year from 1992 until 1995.
Appellant failed to pass a 10-key examination in December 1994. A passing
score on the 10-key exam is required for many Transitional Employee (TE)
positions. Appellant contends that two similarly situated male employees
(African-American male, Comparison 1 and Hispanic male, Comparison 2)
did not successfully complete the 10-key examination but both were hired
for TE positions that did not require 10-key skills.
In her recommended decision, the AJ found that appellant failed to
establish a prima facie case of discrimination on the bases of race, sex,
age, reprisal, or physical disability. Specifically, on the bases of race
and sex, the AJ determined that appellant failed to show that similarly
situated employees not in her protected groups were treated better.
Regarding the two comparisons cited by appellant, the AJ concluded that
Comparisons 1 and 2 were not similarly situated to appellant because both
had more seniority than appellant and were promoted before appellant was
eligible to be placed on the list for "non-10 key" appointments. On the
bases of age, the AJ concluded that appellant failed to establish that
she had applied for an available position for which she was qualified.
In support of this finding, the AJ noted that appellant did not apply
for a TE position at the time she became qualified to apply. On the
basis of reprisal, the AJ concluded that appellant failed to establish
that her immediate supervisors had knowledge of her prior EEO complaint.
Finally, regarding appellant's physical disability claim, the AJ found
that appellant was not a qualified person with a disability entitled to
the protections of the Rehabilitation Act.
The AJ further determined that even if appellant had established an
inference of discrimination on all bases alleged, the agency sufficiently
rebutted appellant's prima facie case by articulating a legitimate,
nondiscriminatory reason for not hiring appellant for a TE position.
For instance, the agency admitted that both Comparison 1 and Comparison 2
failed the 10-key examination, but were given TE appointments in October
and November of 1995 because of their seniority among the candidates who
had not passed the 10-key exam. Both comparisons had more seniority than
appellant. Appellant failed to present any evidence which would show that
the agency's explanation was a pretext for discrimination. Therefore,
the AJ concluded that appellant failed to prove discrimination.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); Stinnett v. Department of Navy,
EEOC Appeal No. 01821387, (September 29, 1983), O'Connor v. Consolidated
Coin Caterers Group, 116 S.Ct. 1307 (1996) (applying the McDonnell
Douglas standard to ADEA cases); French v. Veterans Administration, EEOC
Appeal No. 01850839 (January 2, 1987); Oberg v. Secretary of the Navy,
EEOC Request No. 05890451 (July 20, 1989)(applying the McDonnell Douglas
standard to disability discrimination based on disparate treatment);
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976);
and Wrenn v. Gould, 808 F.2d 493, 500 (D.C. Cir. 1987) (applying the
McDonnell Douglas standard to reprisal cases). Based on our review of the
record, we disagree with the AJ's determination that appellant failed to
establish a prima facie case on the bases of race, sex, and age. However,
we agree with the AJ's ultimate conclusion that the agency articulated
a legitimate, nondiscriminatory reason for not hiring appellant for a TE
position. It is undisputed that appellant failed the 10-key examination.
Also, it is undisputed that Comparisons 1 and 2 were hired for "non-10
key" positions based on their seniority. We note that appellant offered
no additional evidence on appeal in support of her claim. Therefore, we
find that appellant failed to show, by a preponderance of the evidence,
that the agency discriminated against her on the bases of race, sex, age,
physical disability, or reprisal. Accordingly, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the final agency
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations