Jovaunda Brown, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionJan 9, 2001
01982819 (E.E.O.C. Jan. 9, 2001)

01982819

01-09-2001

Jovaunda Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Jovaunda Brown v. United States Postal Service

01982819

January 9, 2001

.

Jovaunda Brown,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01982819

Agency No. 1G-754-1042-96

Hearing No. 310-97-5018X

DECISION

Complainant timely initiated an appeal from a final agency decision

(�FAD�) concerning her equal employment opportunity (EEO) complaint

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.<1> Complainant alleges she

was discriminated against on the bases of race (African-American),

disability (knee injury) and/or in retaliation for prior EEO activity

when the agency in December 1995, allowed a White co-worker, who had

previously been barred from the 204B program, to become a supervisor.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final decision.

BACKGROUND

The record reveals that complainant, a Flat Sorter Machine Operator at

the agency's North Texas Mail Processing and Distribution Center, filed

a formal EEO complaint with the agency on February 22, 1996, alleging

that the agency had discriminated against her as referenced above.

At the conclusion of the investigation of the complaint, complainant

was provided a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). After a hearing, the AJ issued

a decision finding no discrimination.

Complainant filed the complaint in this matter after she learned that a

White co-worker was promoted to a supervisory position. Like complainant,

the co-worker had been barred from continuing in the 204B supervisor

program because of excessive accidents. The AJ concluded that complainant

failed to establish a prima facie case of discrimination on any basis

in this matter because she did not demonstrate that she was similarly

situated to the co-worker. Specifically, the AJ found that complainant

did not apply for the position in question which was a full-time

supervisor position and not within the 204B program.

On appeal, complainant restates arguments previously made at the hearing.

The agency responds by restating the position it took in its FAD, and

requests that we affirm its FAD.

ANALYSIS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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 regarding whether or not discriminatory

intent existed 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 decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. Even assuming that

complainant established a prima facie case on all bases in this matter,

we conclude that she failed to present sufficient credible evidence

that the agency's action was in retaliation for complainant's prior EEO

activity or was motivated by discriminatory animus toward complainant's

race or disability. The record does not show that complainant applied

for the position in question, nor does it suggest that the agency ever

informed complainant that she could not secure a supervisory position

outside the 204B program. As such, we discern no basis to disturb

the AJ's decision. 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 (M0900)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 9, 2001

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.