01a30970
10-06-2003
Ann Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ann Wilson v. United States Postal Service
01A30970
10/6/03
.
Ann Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30970
Agency Nos. 4I-553-1073-94; 4I-553-1098-94
Hearing Nos. 260-A0-9101X; 260-A0-9102X
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. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Transitional Employee at the
agency's Minneapolis, Minnesota facility, filed two formal EEO complaints
in July 7, 1994 and September 27, 1994, alleging that the agency had
discriminated against her on the bases of sex (female) and reprisal for
prior EEO activity when:
(1) the agency did not reappoint her as a Transitional Employee (TE),
placed a memorandum in her file which recommended that she not be hired
for a career appointment on or about April 1994; and
when agency employees placed damaging untruthful documents in her
personnel file.
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 failed to establish an inference of
discrimination when she was not reappointed as a TE because she failed
to produce evidence that similarly situated individuals outside of her
protected class were treated more favorably. Indeed, the record revealed
that all other female TE's who worked with complainant were reappointed
and later converted to part time flexible career positions.
Furthermore, the AJ found the agency articulated legitimate,
nondiscriminatory reasons for its actions. The Manager of Customer
Services testified that in a meeting with other supervisors, a unanimous
decision was made not to reappoint complainant due to various problems
while she was employed. Specifically, the Manager of Customer Services
credibly testified that complainant disobeyed orders to return to the
street and deliver mail and withheld insurance information following a
car accident while on duty.
The AJ found complainant failed to establish any inference of
discrimination when the Manager of Customer Service's recommendation
not to reappoint complainant was placed into her personnel file.
The recommendation was prepared in the normal course of business,
and it was not out of the ordinary to have recommendations placed
into an employee's personnel file. Moreover, the AJ found that this
recommendation served as a legitimate, nondiscriminatory reason for not
hiring complainant into a career appointment position.
Although complainant attempted to show that the agency's failure to
follow certain procedures in its Employee Handbook constituted pretext,
the AJ found this oversight was not determinative. In sum, the AJ
found that complainant failed to produce sufficient evidence that the
agency's reasons for its actions lacked credibility or were a pretext
for discrimination or retaliation.
As for her second complaint, the AJ found that complainant failed
to establish a prima facie case of retaliation because she failed to
establish that the notes were placed into her complaint file following
her EEO activity. Although some notes were placed into complainant's
personnel file, there was no evidence that complainant was singled out for
this treatment because of her sex or prior EEO activity. Furthermore,
there was no causal connection between complainant's prior EEO activity
and the decision not to hire her for a career position.
On September 27, 2002, the agency's final action implemented the AJ's
decision.
On appeal, complainant restates arguments previously made at the hearing.
In particular, complainant restates facts and arguments relating to her
car accident. In response, the agency restates the position it took in
its FAD, and requests that we affirm its final order.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's sex. 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 order.
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
10/6/03
Date