Sarah M. Hernandez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 31, 2002
01A22913_r (E.E.O.C. Jul. 31, 2002)

01A22913_r

07-31-2002

Sarah M. Hernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sarah M. Hernandez v. United States Postal Service

01A22913

July 31, 2002

.

Sarah M. Hernandez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A22913

Agency No. 4D-250-0012-01

Hearing No. 120-A1-4576X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

The record reveals that complainant, a Mail handler at the agency's

Roanoke P&D Center in Roanoke, Virginia, filed a formal EEO complaint

on November 9, 2000, alleging that the agency discriminated against

her on the bases of race and sex when on August 25, 2000, she became

aware that management had by-passed her for employment opportunities

after she had become eligible for employment in 1998.

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 AJ concluded that complainant failed to establish a prima facie

case of race and sex discrimination. Specifically, the AJ found that

complainant failed to demonstrate that similarly situated employees not

in complainant's protected classes were treated differently under the same

circumstances when they were hired before complainant. 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.

The AJ found that after complainant took the entrance examination, she

received a call-in notice on August 6, 1998, informing her that her name

has been inserted on a Hiring Worksheet (HSW). By letter dated September

15, 1998, the agency notified complainant that she was eligible to be

hired by the agency. Further, during the time when complainant and other

applicants were being notified that they were to be pre-screen tested,

a hiring freeze was placed in effect thus suspending further action as to

their hiring. On August 26, 2000, complainant was eventually hired as an

Agency Mail Handler. With respect to complainant's contentions that she

was discriminated against when five named comparison employees were hired

and treated more favorably than her, the AJ found that complainant scored

a lower score and was not yet an agency employee in comparison to the

five named employees. Specifically, the AJ noted that three out of the

five named employees scored higher than complainant on the entrance exam

and were hired before her. Further, the AJ found that the remaining two

named employees were already agency employees when they were reassigned

to the Mail Handler positions in accordance with the agency's Collective

Bargaining Agreement with the National Association of Mail Handlers.

The agency's final order implemented the AJ's decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not a discriminatory

intent existed is a factual finding. See Pullman-Standard v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected classes. The agency's final action

implementing the AJ's finding of no discrimination is therefore AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

July 31, 2002

__________________

Date