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.