01A41333_r
04-15-2004
Karen L. Robey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karen L. Robey v. United States Postal Service
01A41333
April 15, 2004
.
Karen L. Robey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41333
Agency No. 4K-220-0017-03
DECISION
Complainant appeals to the Commission from the agency's December 23, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of race, color, sex, and retaliation when on November 4,
2002, she became aware that a Black, female, junior clerk had been
selected for a higher level detail to serve as the leave replacement
for the Self-Service Postal Center (SSPC) Technician, even though she
had requested to do so on October 18, 2002.
The agency issued a decision finding that complainant failed to present
a prima facie case of retaliation. With regard to the other bases of
discrimination, the agency found that complainant established a prima
facie case of discrimination. The agency found that a legitimate,
nondiscriminatory reason was given for the non-selection which
complainant failed to rebut. The agency's decision found that the
legitimate nondiscriminatory reason was that Mr. X, manager, recommended
the selectee because the selectee had part of her regular job reverted,
resulting in management making up temporary assignments for her.
However, Mr. X was admittedly not the selecting official. According to
the affidavit of the selecting official, the selectee was chosen because
"[f]rom the business sense, selecting [selectee] for a temporary SSPC
technician assignment was the right choice."
When conducting investigations, agencies are required to develop an
�appropriate factual record� which is a record that �allows a reasonable
fact finder to draw conclusions as to whether discrimination occurred.�
The agency's investigator did not ask the selecting official why selecting
the selectee was in a �business sense� the �right choice.� The selecting
official may have relied on a legitimate, non-discriminatory reason for
his selection, but he should have been queried further to explain in more
specificity why he made his selection. Therefore, we shall remand the
matter for supplementation of the record as specified in the Order herein.
The agency's decision is VACATED and we REMAND the matter to the agency
for further processing in accordance with this decision and Order herein.
ORDER
The agency shall conduct a supplemental investigation regarding the
selecting official's reasoning for choosing selectee over complainant.
The evidence shall indicate why the selecting official believes that
choosing selectee was "the right choice." Based on the foregoing,
the agency shall determine whether it has articulated a legitimate,
nondiscriminatory reason for the non-selection and, within 30 days of the
date this decision becomes final shall issue a decision on the matter.
A copy of the decision must be sent to the Compliance Officer as
referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
April 15, 2004
__________________
Date