Tonya D. Bieche, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 1, 2004
01A35030 (E.E.O.C. Nov. 1, 2004)

01A35030

11-01-2004

Tonya D. Bieche, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Tonya D. Bieche v. United States Postal Service

01A35030

11-01-04

.

Tonya D. Bieche,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A35030

Agency No. 1E-981-0046-00 & 1E-981-0016-01

Hearing No. 380-2001-8133X

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. For the

following reasons, the Commission affirms the agency's final order.

The record reveals that complainant, a Mail Processing Equipment Mechanic

(MPE-07)<1>, at the agency's Seattle, P & DC facility, filed two formal

EEO complaints which were consolidated for hearing. In her EEO complaints,

complainant alleged the agency subjected her to a hostile work environment

and discrimination on the bases of race (African-American), sex (female),

and reprisal for prior EEO activity when:

(1) She was denied an opportunity to transfer to the agency's Everett,

Washington postal facility in March 2000;

(2) She was not provided any training or advancement opportunities;

She was charged with AWOL since November 17, 2000 and forced to take

Leave Without Pay (LWOP);

(4) She received an adverse evaluation; and,

The agency improperly disclosed her medical information to another

organization.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of hostile work environment but established a prima facie case of race,

sex and reprisal discrimination. The AJ further found that the agency

articulated legitimate nondiscriminatory reasons for its actions which

complainant did not prove to be pretextual.

The agency's final order implemented the AJ's decision and this appeal

followed. On appeal, complainant contends that the reasons given for the

denial of her transfer to the Everett facility were false or could have

been easily waived as the agency had done for others.<2> The agency

requests that we affirm its final order.

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 discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record

and that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws.

We find that the agency articulated legitimate nondiscriminatory reasons

for not approving complainant's request to transfer to the Everett

facility which complainant did not prove to be false or pretextual. The

agency articulated that complainant's request to transfer to a MPE-07

position in the Everett facility was not approved because complainant

did not have an eligible maintenance test score, a prerequisite for

consideration for a transfer <3>; there was no vacant MPE-07 position

in the Everett facility; and that other qualified craft employees in the

Everett facility would be considered prior to considering complainant's

request to transfer into the facility. See Report of Investigation (ROI)

Exhibits 50, 145, 146, 196 and 199.

While complainant contends that the agency's proffered reasons for

denying her transfer were �false or could have been easily waived as

it had been for others,� she failed to provide any evidence to support

her contentions. Complainant failed to identify any employees outside

of her protected groups who were allowed to transfer to another position

notwithstanding an ineligible test score for the position. In fact, when

complainant was asked on cross examination at the hearing whether she

knew of other employees who had an ineligible test score who were allowed

to transfer, complainant responded, �I don't have any names of people.�

(Hearing Transcript, page 38, lines 10-12, hereinafter, H.T. 38/10-12).

Complainant identified two white male employees who she claimed received

more favorable treatment with regard to transfers, however, these

employees were not similarly situated to complainant because unlike

complainant, these employees had eligible test scores for the position

for which they were considered. See ROI Exhibits 81-82 & 85-86.

We find no probative evidence that agency officials harbored a

discriminatory animus toward complainant due to her protected classes

or any other evidence from which discriminatory intent could be inferred.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final order.

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

____11-01-04______________

Date

1 Complainant's employment with the agency

was terminated in February 2002. Complainant filed an appeal with the

Merit Systems Protection Board challenging her removal and the Board

sustained the removal action. Complainant's removal is not an issue

before this Commission.

2 The Commission exercises its discretion to review only the issues

specifically raised in complainant's appeal. See Management Directive 110

(EEO MD-110), November 9, 1999, at 9-10.

3 The MSS postal handbook EL-304 states in relevant part, �Employees

who have ineligible ratings for the position under consideration are

not considered.� ROI Exhibit 196.