01a02550
08-03-2000
Fay L. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Fay L. Johnson v. USPS
01A02550
August 3, 2000
.
Fay L. Johnson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02550
Agency No. 4G-700-1157-95
Hearing No. 270-97-9046X
DECISION
On February 8, 2000, complainant timely initiated an appeal from
the agency's final action, dated January 7, 2000, concerning her
equal employment opportunity (EEO) 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> 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 alleges she was discriminated against on the basis of race
(black) when on January 21, 1995, she became aware that a delivery route
had been awarded to a white applicant, as a result of a re-posting of
the bid. For the following reasons, the Commission affirms the agency's
final action of January 7, 2000.
The record reveals that complainant, a Rural Carrier Associate (RCA) at
the agency's Woodlawn Station facility, filed a formal EEO complaint with
the agency on July 5, 1995, alleging that the agency had discriminated
against her as referenced above. Specifically, complainant claimed that
she placed a bid on the original November 15, 1994 posting for a rural
route position in order to be awarded a residual route. Before the
jobs could be awarded, a union representative became aware that the
posting improperly considered applications solely of regular route
carriers, and not those of both regular and rural carrier associates,
such as complainant. On December 12, 1994, a corrected announcement
was posted that allowed both regular and associate carriers to apply.
Complainant alleges that but for the re-posting, she would have received
the position, that was given instead to a white female associate carrier.
At the conclusion of the investigation, complainant 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 a prima facie
case of race discrimination. The AJ found complainant to be a member
of a protected class because of her race. However, the AJ found that
complainant failed to demonstrate that similarly situated employees
not in her protected class were treated differently under similar
circumstances, when a white woman with more seniority received the
position in contention. The AJ noted that the National Letter Carriers'
Association agreed with the agency's assessment that if the position
is still vacant, it shall be awarded to an RCA with the longest
continuous service unless another RCA has demonstrated substantially
better qualifications. The AJ determined that because the successful
applicant for the subject position began working for the agency on January
28, 1989, while complainant began in September 1990, complainant cannot
demonstrate a nexus between her race and the award of the position to a
woman with more seniority, who is white. The AJ further concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions and properly corrected the posting error and gave the position
to the candidate with more seniority. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination and that the
agency properly awarded the position to the more senior candidate.
The agency's final action of January 7, 2000 implemented the AJ's
decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Commission finds 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 motivated by discriminatory animus
toward complainant's race. 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 January 7, 2000.
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.
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:
August 3, 2000
____________________________
Date Carlton M. Hadden, 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.