01A34729_r
12-03-2003
Melinda G. Wilson v. United States Postal Service
01A34729
December 3, 2003
.
Melinda G. Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34729
Agency No. 1C-081-0061-02
DECISION
Complainant appeals to the Commission from the agency's July 21, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of race, sex, disability and retaliation when, on June
14, 2002, she was told that she would not be considered for the 204-B
or ASP Supervisory Program. The agency, in its decision found, first
that complainant is not a disabled person. The agency then found that
complainant did not present a prima facie case of disparate treatment.
Finally, the agency found that even if complainant had presented a
prima facie case, complainant failed to rebut the agency's legitimate,
nondiscriminatory reason for not considering complainant.
For the following reasons, the Commission affirms the agency's decision
finding no discrimination.
Assuming, arguendo, that complainant presented a prima facie case
of discrimination, we find that the agency presented a legitimate,
nondiscriminatory reason for its actions that complainant failed to rebut.
We make this finding without making a determination on whether complainant
is a person with a disability. With regard to complainant not being
considered for the 204-B position, we find that the agency provided
a legitimate, nondiscriminatory reason. Specifically, the record
contains an affidavit from the Manager of Distribution Operations in
which he affirms that, when selecting a 204-B, he looks for "employees
who exhibit excellent work habits. . . [a] candidate must also be able
to take and follow instruction." According to the affiant, he observed
that on June 14, 2002, complainant had been away from her assignment
for 45 minutes. He instructed her to take her seat and begin working.
Complainant suggested that he should change his attitude. The manager
then instructed her to return to work four times before telling her
she was being insubordinate. Complainant then left for the remainder
of the day. The record includes a Letter of Warning dated June 27,
2002, as a result of the June 14, 2002 incident. Further, the manager
asserts that when complainant requested a 204-B position, he did not
have one available.
We find that the agency has presented a legitimate nondiscriminatory
reason for not considering complainant for a 204-B position.
Specifically, such a position was not available at the time of
complainant's request. Further, even if a position was available,
the selecting official for the 204-B was looking for someone that would
take and follow instructions, while complainant was insubordinate.
Complainant has failed to rebut the agency's reason. Therefore, we
find that complainant has failed to show, by a preponderance of the
evidence, that she was not considered for the 204-B position as a result
of discrimination on the bases of race, sex, disability, or retaliation.
With regard to complainant not being considered for the ASP
Supervisory Program, we find that the agency has presented a legitimate
nondiscriminatory reason for its actions. Specifically, the agency argues
that complainant failed to meet the criteria for the ASP guidelines.
The record contains an affidavit from a manager on the ASP Review Board.
The manager indicates that the Board, consisting of three people, review
the applicants' packets and score all of the elements resulting in a
overall total score of excellent, strong, minimal, or no demonstration.
Those applicants that received a score of minimal were not given an
interview. Complainant received a score of minimal and was therefore
not considered further for the ASP Supervisory Program. Complainant
has failed to rebut the agency's legitimate, nondiscriminatory reason.
Therefore, we find that complainant has failed to show, by a preponderance
of the evidence, that she was not considered for the ASP Supervisory
Program as a result of discrimination on the bases of race, sex,
disability or retaliation.
The agency's decision finding no discrimination is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 3, 2003
__________________
Date