05980384
11-01-2000
Jacqueline Clarke, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Northeast Area), Agency.
Jacqueline Clarke v. United States Postal Service (Northeast Area)
05980384
November 1, 2000
.
Jacqueline Clarke,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Request No. 05980384
Appeal No. 01961375
Agency No. 4B140102095
Hearing No. 160958533x
DENIAL OF REQUEST FOR RECONSIDERATION
On February 23, 1998, Jacqueline Clarke (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Jacqueline Clarke v. United States Postal
Service, EEOC Appeal No. 01961375 (January 28, 1998).<1> EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. � 1614.405(b). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the decision will have a substantial impact on
the policies, practices or operations of the agency. Id. For the
reasons that follow, the Commission finds that the request fails to meet
the criteria for reconsideration.
BACKGROUND
In the previous decision, the Commission affirmed the agency's adoption
of an EEOC Administrative Judge's (AJ) recommended finding of no
discrimination. Complainant alleged that due to her age (49 at relevant
time) and prior EEO activity, she was not reappointed as a Transitional
Employee Clerk. The AJ, issuing findings and conclusions without a
hearing, determined that complainant failed to establish a prima facie
case of age discrimination or reprisal. The AJ noted that complainant
failed to identify any similarly situated employees outside her protected
groups who were treated more favorably than she and that she did not prove
that she had engaged in prior EEO activity. The AJ went on to note that
even assuming complainant established a prima facie case on either bases,
the agency articulated a legitimate nondiscriminatory reason for failing
to renew complainant's appointment. Specifically, the agency noted that
when complainant's term expired, the facility was attempting to find ways
to save money and because complainant's services were no longer needed,
her appointment was not renewed. The AJ concluded that complainant failed
to establish that this explanation was a pretext for discrimination.
The previous decision affirmed the AJ's findings with little disagreement,
noting only that the AJ was in error when he found that complainant
had not engaged in prior protected activity. The previous decision
found that complainant engaged in protected activity when she notified
management of the fact that several of her coworkers were hitting her
on the backside and asked that such behavior be prevented.
In her request for reconsideration, complainant argues that the AJ's
decision was erroneous. She notes that none of the employees she named
in her affidavit were questioned, despite the fact that she contended
that they would testify to management's discriminatory motivation.
Complainant also alleges that she was not allowed to present evidence
when talking with the AJ, and that the AJ exhibited bias towards the
agency.<2> She argues that her appointment was not renewed due to the
fact that she had reported several coworkers who were sexually harassing
her only a month before her appointment expired.
In response, the agency notes that complainant failed to meet either of
the criteria for reconsideration. It argues that complainant's claim
that she was denied an investigation was considered in the prior decision
when the Commission found that the agency had complied with all procedural
and regulatory prerequisites. The agency asks that complainant's request
for reconsideration be denied.
FINDINGS AND ANALYSIS
After a careful review of complainant's request for reconsideration, the
agency's response and the record as a whole, we find that complainant
failed to establish that the appellate decision involved a clearly
erroneous interpretation of material fact or law; or that the decision
will have a substantial impact on the policies, practices or operations
of the agency. The prior decision correctly held that complainant
failed to establish by a preponderance of the evidence that she was
subjected to age discrimination or reprisal.
In so finding, we first note that the AJ was incorrect in determining that
complainant failed to establish a prima facie case of age discrimination
and reprisal. Complainant established that another Transitional
Employee, under the age of 40 and without prior protected activity, whose
appointment expired a month after complainant, received a renewal. During
the period of the investigation, only the appointments of complainant and
this younger Transitional Employee without prior protected activity (TE),
came up for renewal. In determining that complainant did not establish
a prima facie case, the AJ relied on the fact that the renewal of TE's
appointment took place a month after complainant's appointment was not
renewed. We find, however, that as no appointments ended at the same
time as complainant's, the more favorable treatment of the individual
whose appointment ended soon after complainant is relevant, and raises
an inference of age discrimination. Moreover, only a month before
complainant's appointment was not renewed, complainant complained of
sexual harassment at the hands of several male coworkers and the relevant
management officials were aware of this activity on complainant's part.
Thus, the record also supports an inference of reprisal.
The AJ was correct, however, in finding that the agency articulated a
legitimate nondiscriminatory reason for its actions. The Supervisor
of Customer Service (SCS) at the agency's facility in Jamestown, New
York, testified that in October 1994 he was assigned to the position of
Officer-in Charge, responsible for the overall operation of the facility.
He determined that the Mail Processing division was over budget and began
looking for ways to remedy this problem. In attempting to do so, he told
the supervisors working under him that any temporary or casual employees,
such as Transitional Employees, who were coming up for renewal should
be reviewed to determine whether their appointments should be renewed.
He was told that complainant's renewal date was approaching and, based
on operational needs, determined not to renew her appointment.
Moreover, the AJ correctly determined that there is insufficient evidence
in the record to establish that the explanation provided by SCS is a
pretext to mask discrimination. SCS acknowledged that less than a month
after operational concerns compelled him not to renew complainant's
appointment, the appointment of a younger Transitional Employee without
prior protected activity was renewed. Although he averred that he did
not make the decision to renew TE's appointment, as he was busy with
other work, another supervisor who provided an affidavit noted that SCS
told him to retain TE because they were preparing for the Christmas rush
and had lost one of their casual employees. Although complainant argued
that the proximity in time between the denial of her renewal and the
renewal of a younger employee who had not engaged in protected activity
establishes that SCS was motivated by discrimination, she did not rebut
the agency's explanation that operational needs changed between the end
of October and the end of November, due to the loss of a casual employee
and the upcoming Christmas rush.
Furthermore, while it is true that the witnesses named by complainant
in her affidavit were not interviewed, a review of the record reveals
that the information they would allegedly have provided would not have
established that complainant was subjected to discrimination or reprisal.
In her affidavit, complainant asked that the EEO Counselor be questioned
and alleged that he would state that SCS told him that as each TE came up
for renewal, renewal would be denied until the facility was left with only
4 TEs. As this is not what subsequently occurred, complainant believed
that the Counselor's testimony would support a finding of pretext.
We note, however, that the EEO Counselor's Report is in the record and
describes the conversation between the Counselor and SCS. Therein,
the Counselor noted that SCS stated that complainant's appointment was
not renewed because the facility was overstaffed and complainant's term
was the next one to expire. Testimony of this nature, even if given
in the form of an affidavit, does not establish pretext. Similarly,
even if the other witnesses named by complainant would have testified
as she alleged, she would have failed to establish discrimination.
For example, complainant named two witnesses who allegedly would have
testified that two of the coworkers she reported for harassing her were
very angry with her and indicated that they would like to get her fired.
This does nothing to establish that the agency's articulated reason for
failing to renew complainant's appointment is pretextual. It merely
establishes that individuals who complainant reported held a grudge
against her.
Therefore, we find that the previous decision correctly affirmed the
agency's finding of no discrimination. Complainant failed to establish
that the previous decision involved a clearly erroneous interpretation
of material fact or law or that it will have a substantial impact on
the policies, practices or operations of the agency
CONCLUSION
Accordingly, after a careful review of complainant's request for
reconsideration, the previous decision, and the entire record,
we find that complainant's request fails to meet either of the
criteria for reconsideration. The decision in EEOC Appeal No. 01961375
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
November 1, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant argues that her �hearing� was inadequate. We note, however,
that the AJ made his determination without a hearing and conclude that
complainant must be referring to discussions with the AJ as to whether
Summary Judgment would be granted.