Doretha Wiley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 19, 2002
01A11234 (E.E.O.C. Sep. 19, 2002)

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