01973832
02-16-2000
Rosie M. Taylor, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Area), Agency.
Rosie M. Taylor v. United States Postal Service
01973832
February 16, 2000
Rosie M. Taylor, )
Complainant, )
) Appeal No. 01973832
v. ) Agency Nos. 4-D-0001492-93
) 4-D-2002697-93
) Hearing Nos. 100-95-7495X
William J. Henderson, ) 100-95-7511X
Postmaster General, ) 100-95-7853X
United States Postal Service, )
(Allegheny/Mid Atlantic Area), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaints
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et
seq.<1> Complainant alleged she was discriminated against based on her
sex (female), physical disability (35% limitation of right arm), and
reprisal (prior EEO activity) when: (1) her merit evaluation was delayed
from May 1991 to September 1992; (2) she received a satisfactory rating
on her merit evaluation in September 1992, and (3) she was not given an
opportunity to act in a high-level assignment during the restructuring.
Also, complainant alleged that she was discriminated against based on her
color (medium brown), sex (female), physical and mental disabilities (35%
limitation of right arm, and stress), and reprisal (prior EEO activity)
when on July 9, 1993,complainant learned that she was not selected
for supervisory positions at EAS levels 18, 19, and 20. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
Following each investigation, complainant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),
finding no discrimination. The agency's FAD adopted the AJ's findings of
no discrimination. It is from this decision that complainant now appeals.
The record reveals that during the relevant time, complainant was employed
by the agency as a supervisor, EAS-15, at Wards Place and City Delivery
Annex (CDA), Washington, D.C. Post Office.
The AJ concluded that complainant is a qualified individual with
a physical disability as defined by � 501 of the Rehabilitation
Act.<2> She is 35% limited in the use of her upper right arm. Also,
the AJ determined that complainant is not a qualified individual with a
disability regarding her alleged mental impairment (stress). complainant
did not establish that the alleged stress substantially limits a major
life activity. Therefore, complainant's disability allegations are
limited to her physical disability.
With respect to the delay in her evaluation, the AJ concluded that
complainant failed to establish a prima facie case of discrimination
based on sex, reprisal and physical disability. Assuming that complainant
had established a prima facie case of discrimination on these bases, the
AJ determined that the agency articulated legitimate non-discriminatory
reasons for the delay of complainant's evaluation. The delay occurred
due to the August 1991 settlement of complainant's prior EEO complaints.
The evaluating supervisors who received complainant's unsatisfactory
evaluation were unaware of the settlement agreement that affected the
evaluation by purging the letters of warning and interim evaluation.
The unsatisfactory evaluation which was required to be forwarded and
approved by the divisional office was sent in October 1991, and returned
sometime in 1992. complainant was on maternity leave from January to
April 1992. The division headquarters where the evaluation was forwarded
was restructured and abolished.
The AJ concluded that complainant failed to establish that the
agency's articulated reasons were a pretext to mask unlawful
discrimination. complainant did not provide any evidence that she was
discriminated against when her evaluation was delayed.
"Satisfactory Rating"
Regarding the satisfactory rating on the 1992 evaluation, the AJ
concluded that complainant failed to establish a prima facie case
of discrimination based on sex and disability. However, complainant
did establish a prima facie case of discrimination based on reprisal.
With respect to reprisal, and assuming that complainant had established a
prima facie case of sex and disability discrimination, the AJ concluded
that the agency articulated legitimate nondiscriminatory reasons for
the satisfactory rating. Complainant received a satisfactory rating
on her evaluation because, as a result of the settlement agreement the
letters of warning and interim evaluation were purged, and because her
communication skills had improved.
The AJ concluded that complainant failed to establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Complainant did not provide any evidence that she was discriminated
against when she received a satisfactory rating.
"Higher Level Assignment"
Regarding the denial of opportunity to act in a higher level assignment
during the restructuring, the AJ concluded that complainant failed
to establish a prima facie case of sex and disability discrimination.
However, complainant did establish a prima facie case of reprisal.
The AJ determined that the agency articulated legitimate
non-discriminatory reasons for its actions. First, complainant was
twice considered for details to higher level positions. complainant was
recommended to be assigned to Accounting Papers. However, she was not
detailed because when the opportunity arose complainant did not return
the phone call, and the position had to be accepted and assigned that
day. complainant was recommended for a detail in Collections, Government
Mail, Official Mail Messenger Services; however, another employee, who had
overall better performance than complainant and was more familiar with the
operation, received the detail. complainant was not considered for other
details to higher level positions because the agency was concerned about
her ability to deal appropriately with the employees that she supervised.
The AJ found that complainant failed to establish that the
agency's articulated reasons were a pretext to mask unlawful
discrimination. complainant did not provide any evidence that she was
discriminated against when she did not receive details to higher level
positions.
"Additional Nonselections"
With respect to her nonselection to four positions that were posted in
a vacancy announcement, the AJ concluded that complainant established a
prima facie case of sex, reprisal and disability discrimination. Also,
complainant established a prima facie case of color discrimination
concerning the EAS-20 positions at CDA and Friendship Heights.
Regarding the other positions that were not posted, the AJ determined
that complainant failed to establish a prima facie case of color, sex,
reprisal and disability discrimination since she was not an "affected"
employee during the restructuring.
However, the AJ concluded that the agency articulated legitimate
non-discriminatory reasons for not selecting complainant. The non-posted
positions which became vacant as a result of the restructuring were filled
by "affected" employees. Furthermore, the agency selected individuals who
were better qualified than complainant for the positions that were posted.
Also, complainant was not selected for the posted positions because
she had not acted in higher level positions, and her effectiveness as
a manager could not be determined.
The AJ found that complainant failed to establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Complainant did not provide any evidence that she was better qualified
than the individuals selected for the four positions. Also, she did not
show that she was discriminated against when she was not selected for
the non-posted positions. Furthermore, complainant failed to establish
that the selection process was discriminatory.
After a careful review of the entire record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
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 color, sex, and disability. Therefore, the Commission
discerns no basis to disturb the AJ's findings of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the FAD.
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:
February 16, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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.
2 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.