Rachel Acosta, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western), Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01970437 (E.E.O.C. Jan. 29, 1999)

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