01971765
03-12-1999
Naomi Pena, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest areas), Agency.
Naomi Pena v. United States Postal Service
01971765
March 12, 1999
Naomi Pena, )
Appellant, )
) Appeal No. 01971765
v. ) Agency No. 4G-7601245-95
) Hearing No. 310-96-5139X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Southeast/Southwest areas), )
Agency. )
______________________________)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against her on the basis of national origin (Hispanic) when: (1) she
was denied a schedule change on March 23, 1995, to fill a posted detail
position of Claims and Inquiry Clerk (EAS11); and (2) she was not made
available to fill a posted detail position of Account Representative in
June, 1995. Following the agency's investigation, a hearing took place
before an administrative judge (AJ) who subsequently issued a recommended
decision of no discrimination. The agency thereafter adopted the AJ's
findings and recommendation. It is from this decision that appellant
now appeals.
Appellant, a Window Clerk, was permanently assigned to the Trinity River
Station. The record reveals that appellant's manager (RO) permitted her
to leave her assigned station to serve in detailed positions during the
months of January, March, and September, 1995<1>.
In approximately, late March, 1995, appellant was selected to be one of
five individuals who would rotate in one-month details into a Claims
and Inquiry Clerk position. However, appellant was not released by
RO to accept the detail. The other individuals who were selected
for details worked in another location under a different supervisor.
Sometime thereafter, appellant was chosen for a different detail as
Account Representative but was not permitted by RO to accept the detail.
The detail would have begun in June, 1995 for an undetermined period
of time.
The record further reveals that during the relevant time period, the
Window Clerk positions were understaffed at the Trinity River Station.
Two Window Clerks were absent for an extended period of time; one absence
related to a pregnancy and the other absence related to a serious
medical condition. In addition, the record reveals that all Window
Clerks were permitted, pursuant to collective bargaining agreements,
to take vacations during the summer months and accordingly, management
anticipated a shortage of staff during that time period.
The record also indicates that in December, 1995, RO made arrangements
for appellant to receive the Account Representative detail (the same
position he did not release appellant to work in during the summer
of 1995). Appellant began this detail on January 8, 1996.
The AJ found that appellant failed to establish a prima facie case
of national origin discrimination because she failed to show that a
similarly situated employee, outside her protected class, was permitted a
detail during the relevant time period. With respect to the Claims and
Inquiry Detail, appellant's co-selectees were selected by a different
supervisor. In addition, the AJ noted that the co-selectees were not
selected to replace appellant. The selectees were chosen as a group
to serve on a rotating detail. Moreover, no individual was selected to
replace appellant. With respect to the Account Representative detail,
the individual who ultimately filled the detail was not chosen by RO
and did not work in appellant's duty station.
The AJ also determined that the agency articulated a legitimate,
non-discriminatory reason for its employment action. The record reveals
that the agency permitted appellant the opportunity to serve on details
before and after it denied appellant the two details during the late
spring/summer of 1995. The agency also explained that, in addition
to having the normal summer-time scheduling difficulties, two of the
station's regular Window Clerks were out for extended periods. Moreover,
the record reveals that replacement clerks are arranged months in
advance, making it difficult to obtain additional clerks on short notice.
Accordingly, the agency denied appellant's detail because it anticipated
a Window Clerk shortage during the late spring/summer of 1995.
The AJ also found that appellant failed to show, by a preponderance
of evidence, that the agency's articulated reasons for its employment
action were pretextual to hide national origin discrimination. The AJ
specifically found RO's testimony credible and more logical than
appellant's assertions that a higher official (PM) made the decision
to deny appellant the details rather than RO. According to appellant,
RO advised her that PM made the employment decision. In addition,
appellant's former acting supervisor testified that RO told him that PM
decided that appellant could not go on any future details until further
notice. While the AJ found, based upon PM and RO's testimony, that
PM was not the responsible official, even assuming PM was responsible
for refusing appellant's detail, the record is devoid of any specific
probative evidence which suggests that PM's employment decision was
based upon discriminatory motives.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981).
The Commission concludes that, in all material respects, the AJ accurately
set forth the facts giving rise to the complaint and the law applicable
to the case. We further find that the AJ correctly determined that
appellant failed to establish discrimination based on national origin.
We also find that appellant's contentions on appeal are without merit. For
instance, she alleges that because employees who worked in her station
were detailed during the relevant period she sufficiently presented a
prima facie case of discrimination. In addition, appellant asserts that
the agency did not articulate a legitimate, non-discriminatory reason
for its employment conduct. The record indicates that those employees
outside appellant's protected class who shared the same supervisor as
appellant, did not share the same position, or even a substantially
similar position, as appellant. Accordingly, the Commission agrees
with the AJ in finding that the record is devoid of similarly situated
individuals who were treated more favorably than appellant. In addition,
we agree with the AJ in finding that the agency articulated a legitimate,
non-discriminatory reason for its employment action; that it anticipated
it would be understaffed during the relevant time period. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
3/12/99
_______________ _______________________
DATE Ronnie Blumenthal, Director
1Each detail lasted approximately one month.