Sandra A. Pace, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 26, 2000
01a00022 (E.E.O.C. Jul. 26, 2000)

01a00022

07-26-2000

Sandra A. Pace, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sandra A. Pace v. United States Postal Service

01A00022

July 26, 2000

.

Sandra A. Pace,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A00022

Agency No. 4H-335-1207-96

Hearing No. 150-98-8272X

DECISION

On September 28, 1999, complainant timely initiated an appeal from

the agency's final action, dated September 2, 1999, concerning her

equal employment opportunity (EEO) complaint 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.<1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405).

Complainant alleges she was discriminated against on the basis of race

(black) when she was improperly passed over for consideration for a

career hiring when white employees with lower test scores were hired

instead. For the following reasons, the Commission affirms the agency's

action.

The record reveals that complainant, a Transitional Employee (TE)

Distribution Clerk at the agency's Lakeland Production and Distribution

Center, filed a formal EEO complaint with the agency on September 3, 1996,

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). The AJ issued a decision without a hearing,

finding no discrimination.

The Commission notes that McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973) provides the analytical framework for proving employment

discrimination in cases in which disparate treatment is alleged and

no direct evidence of discrimination has been presented. McDonnell

Douglas requires the appellant to first establish a prima facie case.

If complainant succeeds, the agency's burden then is to articulate some

legitimate, nondiscriminatory reason for its action in order to rebut

the prima facie case of discrimination. Finally, complainant has the

opportunity to show, by a preponderance of the evidence, that the agency's

stated reason is a pretext for discrimination. The ultimate burden

of proof that discrimination took place is complainant's. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

The AJ concluded that complainant failed to establish a prima facie case

of race discrimination. Specifically, the AJ found that complainant

failed to properly complete declination statements that were required

to maintain eligibility for career part-time mail processor positions

and therefore was not available for consideration on the hiring worksheet

used for selection. The AJ determined that the other employees that were

listed on the hiring worksheet were eligible for consideration, but were

ranked below complainant on the register and are white. However, the AJ

determined that complainant failed to demonstrate that similarly situated

employees not in her protected classes were treated differently under

similar circumstances when the facility would only consider employees

on the hiring worksheet for the mail processor positions.

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the AJ

determined that by not including a date of availability, which the

declination form mandates, complainant was removed from the eligibility

list. The AJ found that while complainant is a member of a protected

class, complainant did not demonstrate that the agency's reason for not

considering her for the mail processor positions was based on her race.

Because the agency articulated legitimate, nondiscriminatory reasons for

its actions, the complainant must demonstrate by a preponderance of the

evidence that the agency's reasons for its actions were merely a pretext

for discrimination. See United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-14 (1983). 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/retaliation.

In reaching this conclusion, the AJ found that complainant should have

been aware that her failure to provide an availability date would result

in her disqualification from the selection list. Complainant has not

presented evidence to indicate that the agency's explanation about her

non-consideration is not credible or that a discriminatory reason more

likely motivated the agency.

The agency's final action on September 2, 1999 implemented the AJ's

decision. Complainant makes no new contentions on appeal, and the agency

requests that we affirm its final decision.

After a review of the record in its entirety, including consideration

of all statements on appeal, it is the decision of the Commission to

AFFIRM the final agency action dated September 2, 1999, because the AJ's

ultimate finding, that unlawful employment discrimination was not proven

by a preponderance of the evidence, is supported by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 26, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.