01981401
07-21-2000
Valerie Franklin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Region), Agency.
Valerie Franklin v. United States Postal Service
01981401
July 21, 2000
Valerie Franklin, )
Complainant, )
) Appeal No. 01981401
v. )
) Agency Nos. 1-D-281-1123-94; 1-D-281-1171-94;
William J. Henderson, ) 1-D-281-2630-93
Postmaster General, )
United States Postal Service, ) Hearing Nos. 140-94-8056X; 140-95-8102X;
(Mid-Atlantic Region), ) 140-94-8013X
Agency. )
______________________________)
DECISION
Complainant filed a timely appeal with this Commission from three
final agency decisions (�FADs�) concerning her complaint of employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.<1> In her complaint, complainant
alleged that she was discriminated against on the basis of race (Black),
when: (1) she was not selected for a Part-Time Flexible career position;
(2) the agency informed her that she would not be reappointed as
a Transitional Employee; and on the basis of retaliation when (3)
she was not selected for a Part-Time Flexible City Carrier position.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that complainant, a Transitional Employee at the
agency's General Mail Facility, Charlotte, North Carolina (facility),
filed three formal EEO complaints with the agency alleging discrimination
as referenced above. At the conclusion of the investigations, complainant
requested a hearing before an Equal Employment Opportunity Commission
(�EEOC�) Administrative Judge (�AJ�). Following three separate hearings,
the AJ issued a Recommended Decision (�RD�) for each complaint finding
no discrimination.
The AJ concluded that complainant established a prima facie case of
race discrimination regarding the selection for the Part-Time Flexible
career position and the decision not to reappoint her as a Transitional
Employee because she was qualified for each of the desired positions but
was not selected or reappointed, where individuals outside her protected
group were hired or reappointed. Additionally, the AJ concluded that
complainant also established a prima facie case of retaliation regarding
the nonselection for the Part-Time Flexible City Carrier position because
the individuals responsible for making the hiring decision was aware
of complainant's recent EEO activity when making the decision. The AJ
then concluded that the agency articulated legitimate, nondiscriminatory
reasons for each of its actions.
For the Part-Time Flexible career position, the agency stated that
complainant was not selected because of her poor prior work history with
the agency and her past criminal record. Complainant countered that
an employee (�comparator�) outside her protected class with a criminal
record and negative work history was hired notwithstanding the agency's
knowledge of her history. The AJ found that while it defied logic for
the agency to hire comparator and not hire complainant, the evidence
did not support a finding of race discrimination. The AJ found that
complainant and comparator were not similarly situated in that they
applied for their positions at different times and received reviewed by
different agency officials. Additionally, the AJ found that complainant's
former supervisor (�CFS�) had waged a vindictive campaign to ensure that
complainant never received future employment at the facility. CFS had
reported that complainant was a poor performer with excessive tardiness.
The AJ found that this vindictive behavior resulted not because of racial
animus, but because CFS disliked complainant as she had questioned his
authority on several occasions. Notwithstanding CFS interference, the
AJ found that the record did in fact indicate that complainant had an
attendance problem which was unusual and excessive. As a result, the
AJ concluded that even though some of the agency's articulated reasons
were tainted by CFS's vindictive actions, the record did not support
that the decision not to select complainant was based on her race.
The AJ also concluded that complainant failed to establish that the
agency's use of conviction records in hiring had an adverse impact on
complainant because of her race. The AJ noted that the Blacks were
statistically over-represented in the facility.
As to not reappointing complainant to the Transitional Employee position,
the agency stated that due to her poor work history, she was deemed
unsuitable for reappointment. Complainant asserted that while CFS alleged
she had poor work habits, other supervisors found her work acceptable.
The AJ found that the supervisors complainant relied upon had only
supervised her for brief periods of time and acknowledged that they
were aware of the fact that she had problems with other supervisors.
The AJ concluded that complainant failed to satisfy her burden to put
forth sufficient credible evidence demonstrating that the decision not
to reappoint her was based on her race.
Finally, with respect the Part-Time Flexible City Carrier position,
the agency stated complainant was not ultimately selected because of
her negative work history. Complainant contended that CFS or another
supervisor associated with CFS acted in a retaliatory manner to hinder
her opportunity for the position. The AJ acknowledged that complainant
made convincing arguments with respect to CFS's interference in the
selection process, but found that the evidence does not demonstrate that
CFS's actions were motivated by race or retaliation. Finally, the AJ
noted while the actions by CFS appear vindictive and unfair, Title VII
is not a fairness statute and can not protect an employee for all bad,
mean or unfair employment action.
The agency's issued three FADs adopting the AJ's recommended decisions.
Thereafter, complainant appealed the FADs basically restating arguments
previously made to the AJ. The agency provided no response to the
appeal.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RDs
set forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We note that nothing proffered by
complainant on appeal differs significantly from the arguments presented
at the hearing and given full consideration by the AJ. Therefore, the
Commission discerns no basis upon which to overturn the AJ's finding of
no discrimination in this matter. In this regard, the AJ made specific
fact findings which are entitled to deference.<2> While complainant
presents convincing evidence that CFS acted in a vindictive manner to
ensure that she would not secure a position with the agency, she failed
to show that CFS's actions related to her race or prior EEO activity.
Unless complainant proves that she was discriminated against because of
one of her protected basis or in retaliation for protected EEO activity,
she cannot succeed in her EEO claim. See Jackson v. City of Kileen,
654 F.2d 1181, 1186 (5th Cir. 1981) ("Title VII is not a shield against
harsh treatment at the workplace"). Accordingly, it is the decision
of this Commission to AFFIRM the agency's final decisions which adopted
the AJ's findings of no discrimination.
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
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); 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 21, 2000
Date Carlton M. Hadden, Acting Director
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 Pursuant to 64 Fed. Reg. 37,644 (1999), to be codified at 29
C.F.R. �1614.405(a) (1999), all post-hearing factual findings by an
Administrative Judge based on testimonial or documentary evidence
in the record will be upheld if supported by substantial evidence.
Substantial evidence is defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477 (1951). A finding
that discriminatory intent did or did not exist is a factual finding which
will be upheld if supported by substantial evidence. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).