0120072990
09-11-2007
Levada Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Levada Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120072990
Hearing No. 510-2007-00183X
Agency No. 1H-328-0029-06
DECISION
On June 15, 2007, complainant filed an appeal from the agency's May 11,
2007, 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. The appeal is deemed timely and is accepted for de novo
review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Mailhandler, M-04, at the Westchester Processing and Distribution
Center in White Plains, New York. On November 7, 2006, complainant
filed an EEO complaint alleging that she was discriminated against on the
basis of sex (female) and in reprisal for prior protected EEO activity
[arising under Title VII] when, on September 25, 2006, she became aware
that another employee's transfer request was approved while her transfer
request was denied.1
At the conclusion of the 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 timely
requested a hearing. On March 10, 2007, the AJ assigned to the case
issued a "Notice of Intent to Dismiss", however, the Notice was sent to an
address other than that which was provided by complainant on her hearing
request form and on her formal complaint. Accordingly, on April 2, 2007,
the AJ issued an "Amended Notice of Intent to Dismiss" for the purpose
of reissuing the Notice to be sent to complainant's correct address.
A review of this record indicates however, that neither the initial
Notice nor the Amended Notice was sent to complainant's correct address.
The AJ then dismissed the case for lack of jurisdiction, noting that
complainant had not signed or dated her formal complaint. The agency
subsequently issued a final order on May 11, 2007, adopting the AJ's
finding of no discrimination.
We find that the AJ improperly found that the case ought to be dismissed
for lack of jurisdiction.2 There is no indication that complainant ever
received the Notice or Amended Notice of Intent to Dismiss the complaint.
Second, although the formal complaint was not signed or dated, and
although the issue was not clearly stated, the agency accepted and
investigated the complaint. Nevertheless, we find that the AJ's error
was harmless, in that a decision without a hearing in favor of the agency
would have been appropriate based on this record.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, complainant has not established a prima facie case of sex
discrimination because her comparator (whose transfer request was
granted) is also female. Further, there is no other evidence in this
record from which sex discrimination could be inferred. Nevertheless,
assuming that complainant established a prima facie case of sex and
reprisal discrimination, the agency has articulated a legitimate,
nondiscriminatory reason for its action, namely, complainant had live
discipline (a letter of warning) that did not expire until October 13,
2006, as well as attendance problems. Complainant has not presented
any persuasive evidence that the agency's reasons are more likely than
not pretext for discrimination.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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
September 11, 2007
__________________
Date
1 We note that the formal complaint was neither signed by complainant,
nor dated. In addition, complainant failed to clearly explain the nature
of her allegation of discrimination, other than to describe the individual
to whom she is comparing herself. However, it is clear from the EEO
Counselor's report that complainant's allegation is that on September
25, 2006, she became aware that another employee's transfer request
was approved while her transfer request was denied on the bases of sex
and reprisal. The agency issued an Acceptance letter dated November 24,
2006, accepting the issue as such. Accordingly, we find that the formal
complaint is valid as accepted by the agency.
2 We note however, that on appeal complainant did not argue that the AJ
was wrong to dismiss the case for lack of jurisdiction.
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0120072990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036