01A10074
03-08-2002
Vera A. Cogdell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Vera A. Cogdell v. United States Postal Service
01A10074
March 8, 2002
.
Vera A. Cogdell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A10074
Agency No. 4H320005298
Hearing No. 150988721X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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 her race (Black) and reprisal
(prior EEO complaint) when, on November 17, 1997, she learned that the
agency's Jacksonville facility informed the Ocala facility that she
should not have been sent a call-in notice or given an interview and,
therefore, she was not hired
as a Rural Carrier Associate (RCA) at the Ocala, Florida Post Office.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant was employed as a Laborer Custodian,
PS-03, at the agency's Daytona, Florida facility. Complainant took, and
passed, a written examination for an RCA position that was open to the
public. Consequently, she received a call-in notice dated September 19,
1997, instructing her to report for an interview at the Ocala facility.
She was interviewed and sent for the routine urine analysis examination.
When she did not receive any news regarding the position, she contacted
the Manager of Customer Services, Ocala Main Post Office who informed
her that the call-in notice she received was in error, and she should
not have been called in for an interview. Complainant's name was
removed from the active hiring register. Believing herself to be a
victim of discrimination and reprisal, complainant filed a formal EEO
complaint with the agency on January 22, 1998, 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).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of race
discrimination because none of the selectees were in her protected class.
The AJ concluded, however, that complainant failed to establish a prima
facie case of reprisal because she did not establish that the individual
who took the challenged action, had knowledge of her prior EEO activity
at the relevant time, nor did she establish a nexus between her prior EEO
activity and the removal of her name from the register. The AJ further
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that, in accordance with the
agency's EL-311, when an employee is in a career status at the time a
vacancy occurs for a non-career position, the individual is not supposed
to be considered for employment and the name is removed from the hiring
register. The AJ found that, at the time the RCA position became
available at the Ocala facility, complainant occupied a career status
appointment as a Laborer Custodian at the agency's Daytona facility.
Thus, in accordance with EL-311, complainant should not have a received a
call-in notice, her name should have been placed in the inactive register
and she could not have been selected.
The AJ further found that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination or reprisal. In reaching this conclusion, the
AJ found that complainant presented no credible evidence to undermine
the agency's articulated reasons for its action. The AJ considered
complainant's argument that her personnel folder was red in color, had
the word �restricted� written on it, and several yellow stickers on it,
which she believed served as a warning of her prior EEO activity. The
AJ found, however, that complainant did not establish that folder was
ever red in color, and that, in fact, the folder was orange.<1> The
AJ also considered complainant's argument that she should have been
appointed to the position as a result of a Memorandum of Understanding
(MOA), but found that it was without merit. In finding no pretext, the
AJ relied, in part, on the testimony of the Human Resources Specialist,
Human Resources Office at the District Office in Jacksonville, Florida,
who testified that she was instructed to remove the documents pertaining
to complainant's prior EEO activity in or about July 1997, and she did so.
In sum, AJ was not persuaded by any of complainant's arguments that
the agency's articulated reasons were pretextual. The agency's final
decision implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing,
and emphasizes that she is equally or more qualified than all of the
selectees. In response, the agency restates the position it took in
its FAD, and requests that we affirm its final decision.
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 nothing
raised on appeal has caused us to question the AJ's conclusions, which
are supported by substantial evidence. We note that complainant failed
to present evidence that any of the agency's actions were in reprisal for
complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's race. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal and the agency's response,
we affirm the agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 8, 2002
__________________
Date
1 The AJ found that orange folders are used
for employees who have had prior federal employment. He further found
that complainant had prior federal employment, which explains why her
folder was orange, instead of manilla or tan in color.