05990437
05-18-2001
Rachel Acosta, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.
Rachel Acosta v. United States Postal Service
05990437
May 18, 2001
.
Rachel Acosta,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 05990437
Appeal No. 01970437
Agency No. 1F-927-1024-95
Hearing No. 340-96-3436X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Rachel
Acosta v. United States Postal Service, EEOC Appeal No. 01970437
(January 29, 1999). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> Complainant alleged that
the agency discriminated against her on the bases of race (Hispanic),
sex (female), reprisal (prior EEO activity), age (50), and physical
disability (arthritis) when she was not converted from a Casual position
to a Transitional Employee (TE) position because she failed the 10-key
(machine requiring punching numbers on a key pad) examination. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an Administrative
Judge (AJ). Following a hearing, the AJ issued a recommended decision
(RD), finding that the agency did not discriminate against complainant
on any basis. The agency adopted the RD in its FAD. On appeal, the
Commission affirmed the FAD.
The record reveals that complainant was formerly employed with the agency
as a Casual Clerk, EAS-07, at the agency's Santa Ana Processing and
Distribution Center in California. Complainant worked at the agency
as a Casual Employee for six months each year from 1992 until 1995.
Complainant failed to pass the 10-key examination in December 1994.
A passing score on the 10-key exam is required for many TE positions.
Complainant contended that two similarly situated male employees,
Comparator 1 (African-American male) and Comparator 2 (Hispanic male)
did not successfully pass the 10-key examination, but both were hired
for TE positions that did not require 10-key skills.
The AJ found that complainant failed to establish a prima facie case
of discrimination on the bases of race, sex, age, reprisal, or physical
disability. With respect to race and sex, the AJ found that Comparators
1 and 2 were not similarly situated to complainant, because both had
more seniority than complainant and were promoted before complainant was
eligible to be placed on the list for �non-10 key� appointments. On the
basis of age, the AJ concluded that complainant failed to establish that
she had applied for an available TE position for which she was qualified.
On the basis of reprisal, the AJ concluded that complainant failed to
establish that her immediate supervisors had knowledge of her prior
EEO complaint. Finally, regarding complainant's disability claim,
the AJ found complainant was not a qualified person with a disability
entitled to the protections of the Rehabilitation Act.
As previously indicated, the agency adopted the AJ's RD of no
discrimination. However, on appeal, the Commission disagreed with the
AJ's determination that complainant failed to establish a prima facie
case on the bases of race, sex, and age. Nevertheless, the Commission
agreed with the AJ's ultimate conclusion that the agency articulated a
legitimate, nondiscriminatory reason for not hiring complainant for a TE
position, emphasizing that it was undisputed that complainant failed the
10-key examination and that Comparators 1 and 2 were hired for �non-10
key� positions based on their seniority. The Commission therefore found
that complainant failed to show, by a preponderance of the evidence,
that the agency discriminated against her on the bases of race, sex,
age, physical disability, or reprisal. The Commission affirmed the FAD
finding no discrimination.
On reconsideration, complainant submits that she had more seniority
than Comparators 1 and 2. However, she indicates that her requests
for information about the seniority of Comparators 1, 2, and herself,
dated March 15, 1999, through her union and individually, to verify this
contention have been ignored by the agency. In addition, complainant
submits that she was not required to pass the 10-key examination based on
the job description of a TE or as a Delivery Bar Code Sorter. Complainant
also submits that she is a person with a disability and submits a doctor's
letter, dated August 25, 1998, purportedly supporting her contention.
ANALYSIS AND FINDINGS
Complainant has not demonstrated 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. See 29 C.F.R. � 1614.405(b).
Complainant has not shown that she had more seniority than Comparators
1 or 2. Complainant had the opportunity to avail herself of discovery
prior to the hearing before the AJ. See 29 C.F.R. � 1614.109(d).
Evidently, complainant did not do so. See also 29 C.F.R. � 1614.109(f)
(AJ may serve orders to produce evidence). The evidence complainant
requested was readily available when the AJ's decision was issued.
The AJ found that both Comparators 1 and 2 had more seniority than
complainant. AJ Decision at 91 (citing to Tr. 35); 93. See also Tr. 44,
59-60. Complainant was next in line in seniority for the opportunity to
be promoted to a TE. Tr. 35.<2>
It is undisputed that although the 10-key examination was required
to obtain many TE positions, it was not required to obtain some TE
positions. For those positions for which the 10-key examination was not
required, the record establishes that seniority was used for determining
who would be chosen for the position.
Complainant's letter from her doctor, dated August 25, 1998, discussed
her physical condition while she was working at the agency, and also
presented a more current diagnosis. Evidence about complainant's
physical condition, while she was working at the agency, was readily
available when the case was before the AJ. The doctor's opinion as to
complainant's physical condition, while she was employed at the agency,
should have been submitted for the record before the AJ. Indeed, the
hearing before the AJ ended on August 5, 1996. No explanation has been
given why the evidence was not submitted before the AJ.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01970437 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
May 18, 2001
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Seniority was considered by installation, not agency wide. Tr. 61.