01981774
10-30-1998
Gaynell LaMothe, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Gaynell LaMothe v. United States Postal Service
01981774
October 30, 1998
Gaynell LaMothe, )
Appellant, )
)
v. ) Appeal No. 01981774
) Agency No. 4E-890-0004-97
William J. Henderson, ) Hearing No. 340-96-3429X
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
___________________________________)
DECISION
On December 18, 1997, Gaynell LaMothe (appellant) timely appealed the
final decision of the United States Postal Service (agency), dated
November 19, 1997, concluding she had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. In her complaint, appellant alleged that agency
officials had discriminated against her on the basis of her race (black)
and/or sex (female) when she was denied a transfer to the Las Vegas,
Nevada, Post Office. This appeal is accepted in accordance with the
provisions of EEOC Order No. 960.001.
At the time this matter arose, appellant had been employed by the postal
service as a Distribution and Window Clerk in Los Angeles, California.
On May 4, 1989, appellant requested a transfer to a Las Vegas postal
facility as a Window Clerk. On June 15, 1989, appellant was sent a
letter from the agency officials in Las Vegas requesting documentation
regarding her sick leave usage. Appellant sent in documentation regarding
an operation which required a three-month leave of absence. On October
5, 1989, appellant was sent a letter informing her that there were no
openings in Las Vegas for Window or Distribution Clerks. She was also
informed that if she could pass LSM (Letter Sorting Machine) or FSM
(Flat Sorting Machine) dexterity training she could apply for those
positions, where potential vacancies existed. Las Vegas management
officials stated that appellant was one of approximately 1,000 postal
employees who applied for a transfer to Las Vegas in 1989. The record
revealed one comparator (white female) who was granted a transfer to Las
Vegas in 1989. While this employee had been a Window Clerk prior to her
transfer, she passed the LSM dexterity training in order to transfer
and came to Las Vegas as an LSM Clerk.
On November 26, 1996, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On September 17, 1997, pursuant to 29 C.F.R. �1614.109(e), the AJ
issued a decision without a hearing based on the evidence of record
which concluded that no discrimination had occurred in this matter.
In that decision, the AJ found that appellant failed to establish even
a prima facie case of discrimination as there was no evidence of any
similarly situated employee who was treated more favorably. The alleged
comparative employee was granted a transfer only after she successfully
completed LSM dexterity training, the same opportunity offered to
appellant which she did not accept. Moreover, the AJ noted that given
the large number of transfer requests processed by Las Vegas that year,
it was highly unlikely that anyone was aware of appellant's race.
On November 19, 1997, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
discrimination.
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