01A11234
09-19-2002
Doretha Wiley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Doretha Wiley v. United States Postal Service
01A11234
9/19/02
.
Doretha Wiley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11234
Agency No. 4-H-390-0055-99
Hearing No. 130-AO-8308X
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 Full Time Distribution/Window
Clerk, PS-05, at the agency's Madison, Mississippi facility, filed a
formal EEO complaint on March 16, 1999, alleging that the agency had
discriminated against her on the bases of race (African-American), sex
(female), age (D.O.B. 5/3/48), and reprisal for prior EEO activity when
on or around October 16, 1998, she was denied overtime. In her affidavit
to the EEO Investigator, complainant alleged that she was hounded for
performing her job, while others who abused reporting times, breaks, and
telephone privileges were not reprimanded. On the October 16th date,
complainant alleged that her supervisors called her into a meeting and
accused her of not �working six feet of letter per hour every day,�
and of not helping �throw parcels.� Complainant added that she was
subjected to adverse treatment from her supervisors contemporaneous with
and subsequent to filing discrimination charges against them.
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 discrimination on all of her identified
bases. Nonetheless, the AJ went on to find that the agency articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext to mask unlawful discrimination/retaliation.
In reaching this conclusion, the AJ found that the agency established that
during the week in question, complainant had worked more hours of overtime
than did the cited comparative employee. The AJ also found that there
was no gross discrepancy in the assignment of overtime to complainant,
before or after the filing of her prior EEO complaints in 1997.
The agency's final order implemented the AJ's decision. On appeal,
complainant restates arguments previously made in the processing of her
complaints by highlighting numerous passages from the hearing transcript.
The agency did not respond to the contentions raised by complainant in
her appeal.
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 Bd, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. 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. In responding
to complainant's allegation of discriminatory treatment, her second level
supervisor ( Supervisor #2) indicated that she instructed the Supervisor
of Customer Services, ( Supervisor #1) not to allow complainant to work
overtime to close delinquent post office boxes since other clerks in the
office were able to accomplish this task without exceeding their eight
hour day. Supervisor #2 added that as Postmaster of the Madison Post
Office, it was her decision to control the use of overtime in order
to stay within her budget. Similarly, Supervisor #1 testified that
on October 16, 1998, she did not allow complainant to work overtime to
close post office boxes because there were part time flexible employees
available to perform this task without having to use overtime. In this
regard, Supervisor #1 stated that overtime is only used when needed.
Supervisor #1 also stated that she did tell complainant that she had a
problem with her performance because complainant was only working four
to five feet of mail per hour when six feet per hour was the standard.
We note that complainant failed to present evidence that any of the
agency's actions were in retaliation for her prior EEO activity or were
motivated by discriminatory animus toward her. Specifically, we note
that except for the bald assertion by complainant and her witness that
she was denied overtime because of her race and reprisal, none of the
evidence presented by complainant refute the reasons articulated by
the agency for the challenged action. 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
9/19/02
__________________
Date