01a55865
02-22-2006
Cheryl A. Gardner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl A. Gardner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55865
Agency No. 66000001905
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 10, 2005 final decision in the
above-entitled matter. Complainant alleged that the agency discriminated
against her on the bases of race (African-American) and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when she was given a "Met Objectives/Expectations" rating as
opposed to a "Far exceeded Objectives/Expectations" rating for the period
of October 1, 2003, to September 30, 2004. For the following reasons,
we affirm the agency's final decision.
At the time of the events giving rise to this complaint, complainant
worked as a Forensic Chemist Senior, EAS-14, at the agency's Forensic Lab
in Dulles, Virginia. On February 9, 2005, complainant contacted an EEO
counselor to discuss the allegation described above. When the matter was
not resolved through the informal counseling process, complainant filed
a formal complaint dated March 21, 2005. The complaint was accepted by
the agency for investigation. At the conclusion thereof, complainant
was provided a copy of the investigative report and given the option
to elect a hearing before an EEOC Administrative Judge or an immediate
final decision from the agency. Complainant elected an immediate final
agency decision. In that decision, issued on August 10, 2005, the agency
found that complainant had not been discriminated against as alleged
Specifically, the agency found, in relevant part, that complainant failed
to establish a prima facie case of discrimination because she failed to
show how similarly situated employees were treated differently than she.
The agency noted that all of complainant's true comparators received the
same rating as she, and those she named as comparators were not true
comparators as they were not similarly situated. Finally, the agency
noted that the one comparative employee upon which complainant placed
special emphasis as receiving a higher rating than she even though that
employee had only been with the agency for one month had actually received
a "No Rating." This Commission agrees that complainant has failed to
establish a prima facie case of discrimination. In doing so, we note that
while comparative evidence is but one way of establishing such a case,
complainant failed to present any evidence, comparative or otherwise,
tending to establish a prima facie case of discrimination. Moreover,
even if complainant had established a prima facie case of discrimination,
agency management articulated legitimate, nondiscriminatory reasons for
the rating given, which complainant has not proven were a pretext for
discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
February 22, 2006
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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