0120090806
05-20-2009
Maria Keller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maria Keller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090806
Agency No. 4H-300-0189-07
Hearing No. 410-2008-00125X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 29, 2008 final action concerning
her equal employment opportunity (EEO) complaint claiming 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.
On August 10, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against her
on the bases of race (Caucasian), color (white), sex (female) and in
reprisal for prior protected activity when:
1. in April 2007, her auxiliary route was not covered and she was
instructed to carry two routes; and
2. in April 2007 and continuing, her requests for annual leave were
denied.
A hearing was held before an EEOC Administrative Judge (AJ).1 After
considering the testimony of the witnesses, the AJ determined that
complainant did not show by a preponderance of the evidence that she
was discriminated against on the bases of race and sex.2
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
On appeal, complainant has not provided any persuasive argument regarding
the propriety of the AJ's finding of no discrimination. The Commission
determines that the AJ made a thorough and detailed analysis in his final
decision. Therein, the AJ found that complainant did not establish a
prima facie case with respect to the raised bases. Moreover, the AJ found
that the agency articulated legitimate, non-discriminatory reasons for
its actions in claim 1. Specifically, the AJ found that job assignments
were made in accordance with agency needs; that complainant was assigned
to her chosen and assigned routes; and that she had no problem being
assigned to the routes on Saturdays, so it was complainant's personal
convenience that she did not want to work the two subject routes on
Mondays through Fridays. Moreover, the AJ found that complainant has
not shown that her assignment was based on anything other than an agency
employee being out of the workplace in April 2007; that complainant never
worked more than twelve hours on any given day; and that she always reaped
the benefit of the evaluated time and was paid accordingly. The AJ did
not find that the agency reason was a pretext for discrimination.
Therefore, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final action because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.3
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
May 20, 2009
__________________
Date
1 The record reflects that during the hearing, complainant withdrew color
as a basis. Hearing Transcript (HT) at 11. The record further reflects
that complainant also withdrew claim 2. HT at 89-90. Therefore, the
AJ only addressed claim 1 in his decision.
2 The record reflects that the AJ did not address reprisal as a basis
because it was only related to claim 2.
3 On appeal, complainant does not challenge an agency September 17, 2007
partial dismissal regarding another claim (that she was discriminated
against on the bases of race, color, sex, and in reprisal for filing
the instant complaint when on an unspecified date, her supervisor
secretly sent a letter to the Department of Labor, Office of Workers'
Compensation (OWCP) alleging that her injury was not work related to
delay the processing of her claim). Therefore, we have not addressed
this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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