01a45233
02-23-2005
Theresa Arnold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Theresa Arnold v. United States Postal Service
01A45233
February 23, 2005
.
Theresa Arnold,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45233
Agency No. 1J-631-0032-02
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her 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. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Labor Custodian at the agency's St. Louis facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 15, 2002, alleging that she was discriminated
against on the bases of race (African-American) and sex (female) when:
On November 27, 2001, she was eliminated from any future opportunities
to be used as acting supervisor.
On November 30, 2001, she was not permitted to take the Basic Electricity
course on the clock.
The agency, in its final decision, concluded that it asserted legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. The agency issued a finding of no discrimination.
Claim One
The Maintenance Manager averred that the union complained to him
that employees from the mail handler, letter carrier and clerk crafts,
were transferring into the maintenance craft and within two months of
being assigned into the maintenance craft were permitted to be acting
supervisors without any prior technical education. The Maintenance
Manager took the position description and qualification standard for
the Supervisor, Maintenance Operations position and created an acting
supervisor opportunities notice dated November 27, 2001. The Maintenance
Manager encouraged all qualified employees to apply and then created
an acting supervisor list for the Supervisor, Maintenance Operations
position for all who met the minimum qualifications. The Maintenance
Manager stated that some employees who were used as acting supervisors
prior to November 27, 2001, no longer met the qualifications based on the
new standards. The Maintenance Manager stated that complainant did not
have the necessary technical skills to meet the minimum requirements for
the Supervisor, Maintenance Operations position. We find that the agency
has articulated nondiscriminatory reason for its action. The burden
now shifts to the complainant to show that the agency's legitimate,
nondiscriminatory reasons were a pretext for discrimination.
Complainant argues that the November 27, 2001 acting supervisor
opportunities notice purposefully established qualification standards
that require an employee to be a level 5 Mechanic in order to eliminate
African Americans from serving as acting supervisor. Complainant argues
that since management knew that African American employees were less
than a level 5 Mechanic, that added qualification was established to
restrict African Americans from serving as acting supervisor.
We find that complainant has failed to rebut the agency's legitimate
nondiscriminatory reasons for its action. The agency argued that
the qualification standards were established to allow management
the opportunity to look at the employees who would meet the minimum
requirements to bid on vacant supervisory positions. Prior to the
qualification standards being established, the Manager of Maintenance
Operations had been using employees who would not meet the minimum
requirements for the position, and at the same time denying the
opportunity to those people who would actually bid on a vacant position.
The agency argues that the employees being used as acting supervisor
before the change would not pass the scrutiny of a review board if a
supervisory position became vacant. Moreover, a review of the record
shows that employees in complainant's protected groups (i.e., one African
American and two females) are on the list to serve as acting Supervisor,
Maintenance Operations.
Claim Two
Complainant argues that two White females were permitted to take courses
while on the clock, whereas, her request to take a course was denied.
The Maintenance Manager stated that complainant was not permitted to
take the Basic Electricity course while on the clock because it was
not a requirement in her custodial position. The Maintenance Manager
stated that since complainant is a Laborer, Custodian, PS-3, the class
was considered self development.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for denying complainant's request to take the Basic Electricity
course while on the clock. The Maintenance Manager stated that Employee
A(White female) was promoted to the MM5 Register. Employee A was required
to pass the Industrial Electrical Service, and the pre-requisite for
that course is Basic Electricity. Employee A initially failed the
Basic Electricity course and a grievance was filed on her behalf that
permitted her to re-take the Basic Electricity course on the clock.
Employee B (White female) took the Basic Electricity course while on
the clock in 1998. Once the Maintenance Manager learned that Employee
B took the class, he stopped all self-developmental training courses
while an employee is on the clock. Complainant has not shown that the
agency's reason was pretext for discrimination. Moreover, there was
no evidence in the record to show that other employees were permitted
to take self-developmental training courses while on the clock.
We find that Complainant has failed to rebut the agency's legitimate,
nondiscriminatory reasons regarding claim one and two. Complainant failed
to show, by a preponderance of the evidence, that she was discriminated
against on the bases of race or sex.
The agency's decision finding no discrimination is 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
February 23, 2005
__________________
Date