Ann Wilson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 2003
01a30970 (E.E.O.C. Oct. 6, 2003)

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