0120090200
03-26-2009
Dola V. Duplessis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090200
Hearing No. 480-2007-00620X
Agency No. 4F-900-0105-07
DECISION
On October 11, 2008, complainant filed an appeal from the agency's
September 17, 2008 final order concerning her equal employment opportunity
(EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
During the relevant period, complainant worked as a full-time
Distribution/Window Clerk at the agency's Westchester facility in Los
Angeles, California. On May 18, 2007 and June 4, 2007, complainant
filed two formal EEO complaints, together alleging that the agency
discriminated against her on the bases of race (African-American), sex
(female), color (light brown), age (over 40), and reprisal for prior
protected EEO activity when it denied her request to use leave when she
was ill with the flu, supervisors informed her that her non-scheduled
days were changed to a six-day rotation where she would have Sunday and
a rotating day off, she was placed in Group D, and management scheduled
her for remedial sales and associate training although she has not worked
the window section in many years. Complainant alleged a hostile work
environment. The agency accepted complainant's claim for investigation.
During the agency investigation, a Westchester facility manager stated
that complainant's leave was denied because she did not adhere to facility
policy about leave requests; complainant had Sunday and Monday as rest
days for some time but the days were changed to improve service at the
agency; Group D was complainant's bid assignment; every clerk worked
one or two skilled assignments except complainant and she was informed
that she had to learn a skill, but she made no attempt to do so over
a year's period; and all districts were told to improve window service
and complainant required training just in case she was ever needed.
At the conclusion of the agency investigation, complainant was
provided with a copy of the report of investigation and notice of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing. Following motions from both parties,
without a hearing, the assigned AJ issued a decision on September 8, 2008,
finding no discrimination. Specifically, the AJ found that complainant
failed to establish by a preponderance of the evidence that the reasons
articulated by the agency for its actions were pretext, or that the
alleged actions rose to the level of a hostile work environment or were
based on discriminatory motives. Subsequently, the agency issued a final
order adopting the AJ's finding of no discrimination. The instant appeal
from complainant followed.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that the EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of the
law.")
Here, complainant alleges that she was subjected to hostile work
environment harassment as well as disparate treatment. We find,
assuming the actions complainant alleged rose to the level of a hostile
work environment, complainant failed to show that the said actions were
based on discriminatory motives. Further, as to disparate treatment,
we find that she failed to show by a preponderance of the evidence
that the agency's proffered reasons for its actions were a pretext for
discrimination. Based on the above, we AFFIRM the agency's finding of
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 26, 2009
__________________
Date
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0120090200
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090200