Melinda G. Wilson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 3, 2003
01A34729_r (E.E.O.C. Dec. 3, 2003)

01A34729_r

12-03-2003

Melinda G. Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


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