0120061691
09-20-2007
Elizabeth A. Flater, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth A. Flater,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200616911
Agency No. 4K-210-0088-05
DECISION
Complainant filed an appeal with this Commission from the December 13,
2005 agency decision finding no discrimination.
Complainant alleged that the agency discriminated against her on the
basis of age (D.O.B. December 13, 1948) when on May 28, 2005, her route
was reduced from a 46-hour (46K) route to a 40-hour route (40K).
After completing its investigation, the agency sent complainant a copy
of the report of investigation. The agency informed complainant that
she had a right to request a hearing or a right to the issuance of an
immediate agency decision. When complainant failed to respond timely,
the agency issued its decision.
In its decision, the agency found that complainant failed to establish a
prima facie case of age discrimination because she failed to show that she
was subjected to an adverse action and that she was treated less favorably
than similarly situated employees outside of her protected class.
The agency further found that even if complainant had established a prima
facie case, the agency had articulated a legitimate, nondiscriminatory
reason for its action. The agency noted that the reduction in route was
made after complainant's repeated requests to reduce her route, noting
specifically that her route was reduced based on her written request,
dated February 13, 2005. The agency also noted that although complainant
requested that the Pinehurst area cluster mailboxes be removed from her
route, management determined that the cluster mailbox deliveries could
not be split or removed from her route.
On appeal, complainant argues that the New Market Postmaster sneaked
behind her back and made the route adjustment without her consent and
outside of the proper procedure, noting that she had the right to consent.
Complainant also asserts on appeal that she made the route adjustment
request in February 2005, hoping that the Postmaster would make an
adjustment that was beneficial to the agency and to her. She asserts
that two male carriers had served the cluster boxes before the cluster
mailboxes were placed on her route. Complainant also asserts that she
had called her supervisor asking him to withdraw her letter requesting
a route adjustment and this request was not honored. She also asserts
further that the route adjustment was made as a result of a strong
dislike that she and the Postmaster had for each other.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Although the initial inquiry
in a discrimination case usually focuses on whether complainant has
established a prima facie case, the prima facie inquiry may be dispensed
with when the agency has articulated a legitimate, nondiscriminatory
reason for its actions. In such cases, the inquiry shifts from whether
complainant has established a prima facie case and proceeds to the
ultimate issue of whether complainant has shown by a preponderance of
the evidence that the agency's actions were motivated by discrimination.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation,
EEOC Request No. 05900159 (June 28, 1990).
Upon review, the Commission notes that the agency's finding of no
discrimination was proper. Assuming without deciding that complainant
established a prima facie case, we find that complainant's route was
adjusted as a result of her request for adjustment in February 2005,
and her hours were accordingly reduced. Complainant has failed to show
that the agency's reason was pretextual to mask unlawful discrimination
and that it acted with discriminatory animus. Although complainant
stated that she withdrew her request through her supervisor and the
supervisor stated in his affidavit that he mentioned complainant's
verbal request to the Postmaster, both the supervisor and the Postmaster
stated in their affidavits that requests had to be made in writing.
Complainant's supervisor also stated in his affidavit that he was
not involved in reducing the hours of complainant's route or making
adjustments to her route. The record reveals that complainant had made
several written route adjustments requests since the station underwent
an alignment in 2003, placing the cluster mailboxes on her route. Even
assuming that complainant made the request before the Postmaster had
submitted the final paperwork for the route change, complainant failed
to show that the Postmaster acted with discriminatory animus in going
forward with the requested change. The record reveals that complainant
had consistently sought to have the cluster mailboxes split or removed
from her route and the Postmaster had worked with complainant on previous
requests and sought to honor complainant's requests. The record shows
that removing or reducing the cluster boxes from complainant's route could
not be effected and complainant remained discontented with management's
failure to acquiesce to her continued requests. The preponderance of
the evidence of record does not establish that discrimination occurred.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's decision finding no discrimination is AFFIRMED.
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 tends 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
September 20, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120061691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036