01974827
06-20-2000
Ealnor J. Grey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Ealnor J. Grey v. United States Postal Service
01974827
June 20, 2000
Ealnor J. Grey, )
Complainant, )
) Appeal No. 01974827
v. ) Agency No. HO-0139-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1>; and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<2> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405). Complainant alleged that she was discriminated
against on the bases of race (Black) and physical disability (limitations
due to off-the-job injury) when:
(1) she was denied promotion to the next level of the Career Progression
Program;
(2) she was denied training that was required for advancement; and
(3) she was harassed by her Team Leader.
The record reveals that during the relevant time, complainant was employed
as a Purchasing Specialist, EAS-16, at the agency's Greensboro, North
Carolina facility. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on May 4, 1995. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. Complainant's attorney requested that the agency issue
a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination in regard to issue (1) above; it
then dismissed issue (2) on the grounds that complainant failed to timely
contact and EEO Counselor and issue (3) on the grounds that complainant
failed to show that she was aggrieved.
On appeal, complainant's attorney contends that complainant was
a qualified individual with a disability in that her impairment
substantially limited major life activities including standing, sitting,
and walking; that she therefore established a prima facie case of
disability discrimination; that her complaint was timely; and that she
was aggrieved because she had suffered an adverse employment action.
In contrast, the agency contends that complainant did not establish
a prima facie case of disability discrimination because she did not
establish that her impairment substantially limited a major life activity.
It further contends that complainant failed to establish a prima facie
case of race discrimination in regard to issue (1) because she did not
cite a similarly situated person not of her protected group who requested
to be and was promoted to a higher level under similar circumstances;
or in regard to issue (2) because she could not show how she was harmed
when she was denied her request to attend the training course entitled
"Negotiation Strategies"; or in regard to issue (3) because she did not
show how she was harmed when the Team Leader restricted her asking advice
to certain employees only.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Prewitt v. United States Postal Service,
662 F.2d 292, 310 (5th Cir. 1981) (applying the framework to cases
of disability discrimination), the Commission agrees with the agency
that complainant failed to establish a prima facie case of disability
discrimination in regard to issue (1), but finds, unlike the agency,
that she was able to establish a prima facie case of race discrimination
on this issue, since one comparative employee cited was white. See Doyle
v. United States Postal Service, EEOC Appeal No. 01950090 (May 13, 1966),
citing Connecticut v. Teal, 457 U.S. 440, 451 (1982). In reaching this
conclusion, we determine, unlike the agency, that this white employee
was similarly situated to complainant, since all relevant aspects of
her employment were nearly identical to those of complainant. Hunter
v. United States Postal Service, EEOC Request No. 05960762 (October1,
1998); Lewis v. United States Postal Service, EEOC Request No. 05940307
(November 10, 1994); Smith v. Monsanto Chemical Co., 770 F.2d
719, 723 (8th Cir. 1985).
The Commission further finds, however, that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for denying her request for promotion were a pretext for discrimination.
In reaching this conclusion, we note that complainant's work was found to
be deficient and that she had not demonstrated the required proficiency
in accordance with the Career Progression Program.
Next, we find that the agency correctly dismissed issue (2), on the
grounds that complainant failed to timely contact an EEO Counselor
as required by 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(2) (1999)). Here,
the training was scheduled for October 24-28, 1994, yet complainant did
not contact an EEO Counselor regarding the agency denial of this training
until February 12, 1995, well beyond the 45-day limit specified by the
regulation. Complainant has offered no excuse for her lateness which
would justify agency acceptance of this issue under EEOC Regulation 29
C.F.R. � 1614.604(c).
Finally, we determine that the agency correctly dismissed issue (3)
for failure to state a claim under 64 Fed. Reg. 37, 644, 37, 656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)
(1999)), on the grounds that complainant was not "aggrieved" by the
agency's actions. The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). In this regard, complainant
has not shown how the agency restrictions on her asking advice, which
she termed "harassment" but which, in fact, were designed by management
to help her succeed in the Program, negatively affected her terms and
conditions of employment to the point of making her "aggrieved."
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.