01A33580
09-04-2003
Arnetta Mathews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arnetta Mathews v. United States Postal Service
01A33580
09-04-03
.
Arnetta Mathews,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33580
Agency No. 1G-771-0020-00
Hearing No. 330-A1-8104x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
For the following reasons, the Commission affirms the agency's final
order.
ISSUE
Whether the agency had discriminated against complainant on the basis
of race (African-American) when on April 7, 2000, the agency did not
hire her or give her a satisfactory explanation for her non-selection.
BACKGROUND
Complainant, a former transitional employee at the agency for two
years applied for a position with the agency and tested successfully.
Her candidacy was placed on a list for hire. Complainant was not
hired, while others were. Complainant filed the instant discrimination
complaint, and in the ensuing investigation and hearing, an agency
personnelist testified that complainant was not hired because her
attendance during her earlier incumbency was unsatisfactory.
ANALYSIS
A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Weatherby v. United States Postal Service, Equal
Employment Opportunity Commission Appeal No. 01994738 (Jan. 30, 2002).
For complainant to prevail, she must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, that is, that a prohibited
consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The agency must then articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
While it is not necessary for complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case, O'Connor v. Consolidated Coin
Caters Corp., 517 U.S. 308, 312-13 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n.4 (September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157,
159 (7th Cir. 1996), some evidence must exist from which an inference
of discrimination can reasonably be drawn. Here, complainant failed to
create any inference that race, sex or disability animus motivated the
agency's actions.
During the investigation and at the hearing, complainant adduced no
evidence that her non-selection resulted from race discrimination.
Instead, complainant's former supervisor corroborated the personnelist's
statement of complainant's unsatisfactory attendance, and attested to the
hire of a former employee (Black) who had satisfactory attendance and the
failure to hire another former employee (Black) who, like complainant,
had unsatisfactory attendance. Complainant's failure to adduce any
evidence of race discrimination is fatal to her case.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
___09-04-03_______________
Date