01A22913_r
07-31-2002
Sarah M. Hernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sarah M. Hernandez v. United States Postal Service
01A22913
July 31, 2002
.
Sarah M. Hernandez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22913
Agency No. 4D-250-0012-01
Hearing No. 120-A1-4576X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Mail handler at the agency's
Roanoke P&D Center in Roanoke, Virginia, filed a formal EEO complaint
on November 9, 2000, alleging that the agency discriminated against
her on the bases of race and sex when on August 25, 2000, she became
aware that management had by-passed her for employment opportunities
after she had become eligible for employment in 1998.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race and sex discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees not
in complainant's protected classes were treated differently under the same
circumstances when they were hired before complainant. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The AJ found that after complainant took the entrance examination, she
received a call-in notice on August 6, 1998, informing her that her name
has been inserted on a Hiring Worksheet (HSW). By letter dated September
15, 1998, the agency notified complainant that she was eligible to be
hired by the agency. Further, during the time when complainant and other
applicants were being notified that they were to be pre-screen tested,
a hiring freeze was placed in effect thus suspending further action as to
their hiring. On August 26, 2000, complainant was eventually hired as an
Agency Mail Handler. With respect to complainant's contentions that she
was discriminated against when five named comparison employees were hired
and treated more favorably than her, the AJ found that complainant scored
a lower score and was not yet an agency employee in comparison to the
five named employees. Specifically, the AJ noted that three out of the
five named employees scored higher than complainant on the entrance exam
and were hired before her. Further, the AJ found that the remaining two
named employees were already agency employees when they were reassigned
to the Mail Handler positions in accordance with the agency's Collective
Bargaining Agreement with the National Association of Mail Handlers.
The agency's final order implemented the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not a discriminatory
intent existed is a factual finding. See Pullman-Standard v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. The agency's final action
implementing the AJ's finding of no discrimination is therefore 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
July 31, 2002
__________________
Date