0120083154
09-18-2008
Donna M. Blain, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna M. Blain,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083154
Agency No. 4B028000107
Hearing No. 52020070037AX
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 3, 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.
Complainant, a Postmaster, alleged that the agency discriminated
against her on the bases of sex (female) and age (57) when she was
placed on emergency placement off duty status and when she was denied
adequate staffing. Following the investigation into her complaint,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision by summary judgment in favor of the agency.
The agency adopted the AJ's decision in its final order. The instant
appeal followed.
In her recitation of the facts the AJ noted that efforts were undertaken
to hire new carriers for complainant's facility starting in May 2006. The
Acting Manager called complainant in September 2006 to discuss hiring,
and when complainant did not answer, talked to her assistant. During this
telephone call, the telephone was on speaker phone and included members
of the personnel staff. Complainant walked in during the conversation,
and the Acting Manager told complainant he would call her later. Neither
party hung up, and as a result, the Acting Manager heard complainant
make disparaging remarks about him and the personnel office. As a result,
she was placed on administrative leave with pay pending an investigation.
In the end, complainant was not disciplined and the off-duty status was
terminated.1 With respect to the hiring of new employees, the AJ noted
that the agency approved the hiring of new employees in May 2006. The AJ
found that the delay in hiring carriers was due to complainant's failure
to act timely upon the approval of her request for hiring authority.
Based on the evidence of record, the AJ concluded that complainant did
not establish that the agency's reasons for its actions 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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
September 18, 2008
__________________
Date
1 As noted in the AJ's decision, complainant did not return to her
facility, but has been working a detail position at the same rate of
pay.
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0120083154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083154