01a00764
04-03-2000
Victoria Hillman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Areas), Agency.
Victoria Hillman, )
Complainant, )
) Appeal No. 01A00764
v. ) Agency No. 4I-680-0067-97 et al
) Hearing No. 280-98-4072X et al
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Caucasian),
color (white), sex (female), reprisal (prior EEO activity), age (DOB:
8/19/47), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Complainant alleges she was discriminated against when: (1) on December
27, 1996, she was not selected for a Part Time Flexible (PTF) position
at the Smith Center Post Office; (2) on February 20, 1997, she was not
selected for a PTF position at the Downs Post Office; (3) on January
6, 1998, she was not selected for a PTF city carrier position at the
Stockton Post Office; and (4) on February 27, 1998, she was not selected
for the PTF carrier position at the Russell Post Office. 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 Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was not
employed by the agency when she sought the aforementioned positions.
At the time of the hearing, however, complainant was employed by the
agency as a Rural Carrier Associate, at the Stockton, Kansas, facility.
When complainant was not selected for the aforementioned positions, she
sought EEO counseling and, subsequently filed four formal complaints.
At the conclusion of the investigation, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a
recommended decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race or sex discrimination because she failed to demonstrate
that the selectees of the positions for which she applied were outside
of her protected classes. The AJ did find, however, that complainant
established an inference of discrimination with respect to her claims
of age and reprisal discrimination. Specifically, the record revealed
the selectees for the aforementioned positions were all substantially
younger than complainant, and none had any record of engaging in prior
protected activity.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions through the testimony of the
various selecting officials at each facility. The selecting officials
collectively testified that the selectees were more qualified for the
positions than complainant, due to their multiple years of experience,
letters of recommendation, and interview performance. Each selecting
official testified that they chose the selectees due to their positive,
professional attitudes, as well as their willingness to learn the position
and work well with co-workers.
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 or retaliation. In reaching this conclusion, the AJ
found that complainant did not present any evidence, other than her
own opinions, to substantiate her claims. Although complainant argued
she was more qualified than the selectee's due to her higher scores on
agency examinations, the AJ was not persuaded that complainant was the
victim of unlawful discrimination.
Furthermore, the AJ was not persuaded by complainant's allegation that the
agency's �Rule of Three� required her selection for one of the positions.
Rather, the AJ found complainant did not offer any corroborating evidence
as to her interpretation of the �Rule of Three.� In contrast, the AJ
found the agency refuted complainant's position as to the �Rule of Three�
by a preponderance of the evidence.
Finally, the AJ addressed complainant's argument regarding a prior finding
of discrimination made in her favor by the Office of Federal Operations
in regards to a non selection in 1993. Specifically, complainant
argued that the agency's prior treatment of complainant indicative of a
discriminatory bias in the present case. Although the AJ noted that the
evidence did have some relevance to the present case, the prior finding,
in and of itself, did not prove discrimination in the instant case.
In sum, the AJ found that complainant did not present any evidence
whatsoever that corroborated her claims. The AJ also noted that he
found all agency witnesses to be credible.
On September 29, 1999, the agency issued a final decision finding no
discrimination.
On appeal, complainant restates arguments previously made at the hearing.
Complainant also argues the AJ made numerous errors at the hearing.
She argues that statements made by the agency's representative during the
hearing are indicative of a discriminatory animus. The agency responds
by restating the position it took in its FAD, and requests that we affirm
its FAD.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
recommended decision 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 race, sex or age. After a
review of complainant's lengthy brief on appeal, we find that complainant
failed to present sufficient evidence disputing the agency's claims.
We discern no basis to disturb the AJ's finding of no discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.
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:
April 3, 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.