01A41689
07-15-2004
JoAnn Velianski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro Area), Agency.
JoAnn Velianski v. United States Postal Service
01A41689
July 15, 2004
JoAnn Velianski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01A41689
Agency No. 1A-077-0018-02
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Mail Processing Clerk at the agency's Monmouth Processing &
Distribution Center. Complainant sought EEO counseling and subsequently
filed a formal complaint on September 3, 2002, alleging that she was
discriminated against on the basis of sex (female) when her request for
light duty was denied. Specifically, on February 13, 2002, complainant
requested permission to be allowed to work wearing an open-toe shoe.
Her request was denied, but complainant alleges that two male employees
were allowed to work with open-toe shoes.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex discrimination. Specifically, the agency
found that two male comparison employees were not similarly situated to
complainant. On appeal, complainant contends that she and the comparison
employees were similarly situated in relation to the party responsible
for the alleged discriminatory acts because they were all subject to the
agency's policy prohibiting open-toe shoe casts. The agency requests
that we affirm its FAD.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following this
order of analysis is unnecessary when, as here, the agency has articulated
a legitimate, nondiscriminatory reason for its action. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The Commission finds that even assuming arguendo that complainant
established a prima facie case of sex discrimination, the agency proffered
a legitimate nondiscriminatory reason for denying complainant a light
duty assignment. Agency officials stated, and the record reflects, that
complainant was denied light duty because her supervisor was adhering
to the agency's policy prohibiting employees from wearing shoes that
would jeopardize their safety.
Furthermore, in regard to the two male comparison employees, the
record reveals that comparison #1 did not work at the same facility as
complainant and received approval by someone other than complainant's
supervisor to wear an open-toe shoe, and complainant's supervisor was
no longer Plant Manager at the time comparison #2 wore the open-toe shoe
cast and had no authority over him. While it appears that the agency's
safety related rule concerning the wearing of open-toe shoe casts was
not uniformly enforced, we are not persuaded by any evidence in the
record that complainant's supervisor's adherence to it was a pretext
for sex discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
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
_July 15, 2004_________________
Date