01987048
08-31-1999
Jacqueline Robinson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Jacqueline Robinson, )
Appellant, )
) Appeal No. 01987048
v. ) Agency No. 4G-760-1206-95
) Hearing No. 310-96-5586X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), sex (female),
reprisal (prior EEO activity), and age (40), 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. Appellant alleges she was discriminated against
when she was reassigned from her duty/bid assignment on or around June 7,
1996. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a PS-06 Distribution Clerk at the
agency's Dallas, Texas Processing and Distribution Center, filed a
formal EEO complaint with the agency on July 3, 1996, alleging that
the agency had discriminated against her as referenced above. At the
conclusion of the investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
retaliation or discrimination under any of her alleged bases, noting that
there was no evidence the supervisor (S1) responsible for reassigning
her was either involved or familiar with her prior EEO activity, and
that the other employee (C1) involved in the incidents leading up to
appellant's reassignment was also female, Black and forty years old.
The AJ then concluded that even if appellant established a prima facie
case of discrimination or retaliation, the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that after appellant
complained that she felt threatened by statements allegedly made by C1,
S1 decided it was in the best interest of the agency to separate C1 and
appellant by moving appellant. S1 stated that C1 was in a bid assignment,
whereas appellant did not have a bid assignment, and in order to diffuse
any perceived threat, she relocated appellant to another area. S1 denied
that her actions were motived by discriminatory animus, and stated she
only took such action after appellant complained that she felt threatened.
The AJ found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to present
evidence that the agency's action was in retaliation for her prior EEO
activity or was motivated by discriminatory animus toward any of her
alleged bases.<1> We discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
August 31, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 We note that C1 was thirty-six (36) years of age, and not forty (40)
as the AJ stated. See Investigative File at Exhibit 4, page 1. While
appellant may have established a prima facie case of age discrimination,
the record supports the AJ's conclusion that she presented no evidence
the agency's articulated reason was a pretext, and that but for her age,
she would not have been reassigned. See Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979).