01980616
10-30-1998
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
Veronica Hooks v. United States Postal Service
01980616
October 30, 1998
Veronica Hooks,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Areas),
Agency.
Appeal No. 01980616
Agency No. 1-D-234-1016-96
Hearing No. 120-96-5829X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning her disparate treatment and adverse impact allegations that
the agency discriminated against her on the bases of sex (female) and age
(born 1950) when she was transferred from Manager, Maintenance Operations
Support, EAS-17, to an EAS-16 position while her EAS-17 position was
awarded to a veteran, 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.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960.001.<1> For the following reasons, the FAD is AFFIRMED.
At the time of the alleged discrimination, appellant was employed at the
agency's General Mail Facility in Norfolk, Virginia. The investigative
record reveals that the agency underwent a nationwide reorganization in
1992, which affected appellant's EAS-17 position. In 1994, the Merit
Systems Protection Board (MSPB) ruled that the reorganization was in
fact a reduction-in-force (RIF). Under the MSPB ruling, the agency was
required to give placement preference to veterans that were affected by
the reorganization/RIF. Consequently, appellant's EAS-17 position as
Manager, Maintenance Operations Support, was awarded to a veteran (V1).
Appellant was not a veteran. Therefore, appellant was not similarly
situated to the selectee. Although appellant was reassigned to an
EAS-16, Supervisor, Maintenance Operations position, she retained her
saved grade and saved pay.
Believing that she was the victim of discrimination, appellant
sought EEO counseling and, thereafter, filed a formal EEO complaint.
The agency accepted the complaint for investigation and complied with
all of our procedural and regulatory prerequisites. Subsequently,
appellant requested a hearing before an EEOC Administrative Judge
(AJ). Upon the agency's Motion for Findings and Conclusions Without a
Hearing, and consideration of the submissions of the parties, the AJ
concluded that there were no genuine issues of material fact. See 29
C.F.R. �1614.109(e). Thereafter, the AJ issued an order granting the
agency's motion for a decision without an administrative hearing
and, subsequently, issued a Recommended Decision (RD) finding no
discrimination. In the RD, the AJ concluded that appellant failed
to establish a prima facie case of sex and age discrimination based
on disparate treatment. Specifically, the AJ reasoned that appellant
failed to present a similarly situated comparator that was treated more
favorably. With respect to appellant's adverse impact assertion, the AJ
concluded that the alleged violation was based on veterans preference
regulations which were not within the purview of the EEOC process.
Thereafter, the agency adopted the RD and issued a FAD, dated October
3, 1997, finding no discrimination. It is from this agency decision
that appellant now appeals. On appeal, appellant reiterated previously
submitted contentions.
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's RD sets forth the relevant facts, and properly analyzes
the appropriate regulations, policies and laws. The Commission discerns
no basis to disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct 30, 1998
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1We note that this case was originally appealed to the Merit Systems
Protection Board (MSPB or Board). In Hooks v. United States Postal
Service, Docket No. DC-0351-96-0369-I-1 (March 26, 1996), an MSPB
Administrative Judge concluded that the Board did not have jurisdiction
over her appeal. The Administrative Judge reasoned that appellant's
reassignment from an EAS-17 to an EAS-16 did not involve a reduction in
grade or pay and was, therefore, not appealable to the MSPB. Accordingly,
the appeal was dismissed.