Rosie M. Taylor, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Area), Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01973832 (E.E.O.C. Feb. 16, 2000)

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.