01973877
02-23-1999
Loretta J. Wells, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
Loretta J. Wells v. United States Postal Service
01973877
February 23, 1999
Loretta J. Wells, )
Appellant, )
) Appeal No. 01973877
v. ) Agency No. 1D-284-1009-95
) EEOC No. 140-96-8040X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which she claimed
discrimination on the bases of race (Black), and sex (female), when
(1) on November 26, 1994, she was not converted/promoted to a full-time
regular position, and 2) her 30% disability was refused by the agency.
The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission administrative judge
(AJ). A hearing was conducted on February 12, 1997.
On March 13, 1997, the AJ issued a recommended decision (RD) finding
no discrimination. The AJ concluded that appellant failed to establish
a prima facie case on either bases in that she failed to demonstrate
that she was treated less favorably than a similarly situated employee
outside of her protected groups. Specifically, appellant alleged that
she was treated less favorably than a comparative employee (Caucasian,
male) when he was moved above her on the promotion register according to
seniority, and was subsequently promoted from the hiring register dated
September 1994. However, the AJ found that the comparative had indicated
on his application that he claimed a ten-point veteran's preference,
whereas appellant admitted at the hearing that she did not claim a
veteran's preference because she had not received her VA rating at the
time she submitted her application. Thus, the AJ found that appellant
was not promoted because her seniority ranking was lower than the four
applicants chosen for promotion.
Although the AJ found that the agency made a correction in the
comparative's seniority after he notified it of an error, the AJ
found that appellant failed to refute the agency's assertions that
it changed the comparative's rating because of its own error, whereas
appellant's rating was based on the fact that neither appellant nor the
agency was aware of appellant's disability at the time of her August
1993 application. Although appellant later submitted documentation
in December 1993 indicating that she had a 30% disability which was
effective April 1993, agency regulations provide that persons are rated
at the time of the application, and not at a later date, despite the
submission of additional documentation.
In light of the fact that appellant failed to present evidence which
showed that the agency erred in its own initial rating of appellant,
the AJ found that appellant failed to prove by a preponderance of the
evidence, that she was discriminated against, as alleged. Thus, the AJ
recommended a finding of no discrimination.
On May 5, 1997, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
The Commission has reviewed the parties' statements on appeal and discerns
no basis in which to disturb the AJ's finding of no discrimination.
Accordingly, it is the decision of the equal Employment Opportunity
Commission to AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
February 23, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations