0120071046
05-28-2009
Irene T. Bowman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071046
Hearing No. 270-2005-00053X
Agency No. 4G-700-0077-04
DECISION
Complainant appeals to the Commission from the agency's decision
dated November 21, 2006, finding no discrimination. In her complaint,
complainant alleged discrimination based on race (African-American), age
(over 40), and in reprisal for prior EEO activity when: (1) on February
3, 2004, she was not allowed to move to the new Budget Office location
and she was not afforded the opportunity to select her office; and,
(2) she was issued a Letter of Warning (LOW) on May 14, 2003.
After completion of the investigation of the complaint, complainant
requested a hearing but it was denied by an EEOC Administrative Judge
(AJ). The agency then issued its decision concluding that it asserted
legitimate, nondiscriminatory reasons for its actions, which complainant
failed to rebut.
We find that the AJ properly denied complainant's hearing request due to
her failure to respond to the agency's pre-hearing discovery request in
a timely manner. In a letter dated March 21, 2005, the agency clearly
informed complainant that the parties had agreed to extend her discovery
response, which was initially due March 16, 2005, up until March 28,
2005, by when the agency must receive the response. Complainant does
not dispute this on appeal and in fact, she admits that her response
was not received by the agency until March 30, 2005.
Assuming arguendo that complainant had established a prima facie case of
discrimination, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for the alleged incidents.
With regard to claim (1), complainant's supervisor stated that the
move to the 11th floor was to be accomplished in phases in order to
minimize disruption to the Budget Office operations. He also stated
that the reason others were moved first was to not interfere with or
disrupt complainant's ability to complete the mini-Flash Report which
was very important and that was distributed to the District Manager
and his direct report every Monday morning. The supervisor indicated
that both he and complainant did not move until after the due date
of the mini-Flash report. The supervisor also stated he might have
been able to move complainant earlier if he knew of her desire to
move earlier. Complainant was ultimately allowed to move to the new
Budget Office location the day after the comparative employees in
her office that she refers to made the move. There is no indication
that any decision regarding the office move was made discriminatorily,
but rather complainant's work requirements resulted in her move being
delayed one day.
With regard to claim (2), the supervisor stated that the LOW was issued
to complainant due to her failure to complete assigned duties and failure
to follow instructions.
After a review of the evidence in the record, we find that complainant
failed to rebut the agency's legitimate, nondiscriminatory reasons for
the alleged actions. We also find that complainant has not shown how
any agency action in the complaint was motivated by discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
5/28/09
__________________
Date
2
0120071046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013