01986769
05-15-2001
Maria Romanik, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Western Area), Agency.
Maria Romanik v. United States Postal Service
01986769
May 15, 2001
.
Maria Romanik,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01986769
Agency No. 4E-890-0034-97
Hearing No. 340-97-3948
DECISION
Complainant timely initiated an appeal from the agency's final order
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against on the bases of national origin (Mexican)
and reprisal (prior EEO activity) when she was not selected for the
position of Hispanic Program Specialist, EAS-17 in February, 1997.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a City Letter Carrier at the agency's
Las Vegas Post Office facility, filed a formal EEO complaint with the
agency on March 19, 1997, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of reprisal or national origin discrimination. Specifically,
the AJ found no evidence of record which demonstrated that complainant
was treated differently based on her national origin or that anyone
associated with this complaint knew of or considered prior EEO activity
at any stage of the selection process (i.e, her name was left out of
the package of recommended candidates and the selecting official did not
have the opportunity to consider her.) In addition, the AJ found that
complainant's application packet was clearly inferior in content and
preparation to the applications of the candidates that were recommended
for the position of Hispanic Program Specialist, EAS-17.
The agency's final order implemented the AJ's decision.
Complainant argues on appeal that the AJ improperly found the case devoid
of genuine issues of material facts. Specifically, complainant argues
that the AJ failed to address the issue of disparate treatment with
respect to allowing the selectee the ability to retake the Spanish test.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
After a careful review of the record, we agree with the AJ's ultimate
determination that summary judgment was appropriate in this matter.
However, we clarify the AJ's analysis of the relevant issues herein.
The complainant alleged that she was treated differently in the
application process, based upon her prior EEO activity and national
origin. This disparate treatment allegedly prevented complainant from
being forwarded to the selecting officials for final consideration.
In the investigative file, complainant identified mainly two incidents
of disparate treatment. The first incident took place prior to her
submission of the application. According to complainant, when the
vacancy announcement came out she went to the head of personnel (P1)
(prior EEO activity unknown, national origin unknown) seeking information
about the vacancy. According to complainant, P1 was not as helpful to her
as he was to the selectee (Spanish, German, American Indian, no prior EEO
activity), and sent complainant on a �wild goose chase� to obtain needed
information about the position. Specifically, complainant alleges that
P1 �sent [her downstairs] looking for a red-headed lady who might know
who was also an alleged competitor for the same position.� Complainant
fails to articulate how the selectee was treated in comparison.
The second incident of disparate treatment alleged by complainant
involved permitting the selectee to �re-take� the Spanish test after
failing the test. Complainant provided no other evidence in support
of this assertion. In response, the Review Committee Chairperson (RC)
(Mexican-American, no prior EEO activity), testified that all applicants
passed the Spanish test and no applicant was allowed to �re-take�
the test. However, because of the lengthy and wordy translations of
complainant and the selectee, RC explained that both complainant and the
selectee were permitted the opportunity to �modify their translations to
a much simpler version.� In addition, RC testified that all applicants
were asked the same questions during the interview, and complainant
had difficulty communicating to the Board in English. According to
RC, complainant's �answers were sometimes not directly related to the
questions asked, and sometimes she had to be asked the same question in
different way before she was able to respond appropriately.� Based upon
the results of the written and interview presentations, RC recommended
the selectee and C1 (Mexican, no prior EEO activity) to the review board.
Lastly, RC testified that she did not know of complainant's national
origin or prior EEO activity when she recommended the selectee and C1
to the board.
We find that complainant provided nothing more than bold assertions with
respect to her claim of disparate treatment. Moreover, complainant
failed to present any assertion of pretext or discriminatory animus.
Accordingly, we find that she failed to raise genuine issues of
material facts rendering summary judgment appropriate in this matter.
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 order.
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
May 15, 2001
__________________
Date