01a05641
11-17-2000
Barbara Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area) Agency.
Barbara Johnson v. United States Postal Service
01A05641
November 17, 2000
.
Barbara Johnson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny Area)
Agency.
Appeal No. 01A05641
Agency No. 4C-170-0052-99
Hearing No. 170-A0-8073X
DECISION
Complainant timely initiated an appeal from the agency's final final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the basis of age (DOB: September
1, 1932) when on June 4, 1999, she received a �Notice of Separation�
during her ninety-day probationary period. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a part time Flexible Distribution
and Window Clerk at the agency's Mechanicsburg, Pennsylvania facility,
filed a formal EEO complaint with the agency on June 29, 1999, alleging
that the agency had discriminated against her as referenced above.
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 age discrimination. Specifically, the AJ found that complainant
failed to demonstrate that similarly situated employees not in her
protected class were treated differently under similar circumstances.
The AJ found that complainant did not proffer any comparison-employees
who received a majority of �Unsatisfactory� ratings while on probation,
but who were nevertheless retained. The AJ further concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions;
namely unsatisfactory ratings in four of six ratings factors.
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 and the agency's final order implemented the AJ's decision.
From this final order, complainant now appeals.
After a careful review of the record, the Commission finds that the AJ
correctly determined there to be no genuine issue of material fact and
we further find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We note that complainant failed to proffer evidence that any of the
agency's actions were motivated by discriminatory animus based on
complainant's age. 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 (M0900)
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
November 17, 2000
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.