01A14534
10-22-2002
Marilou P. Pace, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marilou P. Pace v. United States Postal Service
01A14534
October 22, 2002
.
Marilou P. Pace,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14534
Agency No. 1F-941-0072-00
DECISION
INTRODUCTION
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.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Mail Handler, PS-04, at the agency's Processing and Distribution
Center, San Francisco, CA. Complainant sought EEO counseling and
subsequently filed a formal complaint on August 16, 2000, alleging that
she was discriminated against on the bases of sex (female) and reprisal
for prior EEO activity in the assignment of acting supervisor duties
and other higher level assignments.
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. Although
complainant initially requested a hearing, prior to the scheduled hearing,
she withdrew her request and requested a FAD.
In its FAD, the agency concluded that complainant failed to prove a prima
facie case of sex and retaliation discrimination in that she failed
to establish a difference in treatment between herself and similarly
situated individuals not within her protected class.
CONTENTION ON APPEAL
On appeal, complainant contends that the investigation was incomplete
because a management affidavit was not obtained, and that the
investigator's analysis of the higher level assignments was inaccurate.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
The gravamen of complainant's complaint is that she was discriminated
against based on sex and reprisal when she was only utilized twice a
week on higher level assignments. Applying the standards set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases), the Commission agrees with the agency that
complainant failed to establish a prima facie case of sex and reprisal
discrimination because the record shows complainant was given higher level
assignments comparable to male employees. In reaching this conclusion,
we note that the investigative report contained a comparative analysis
for thirteen weeks reflecting higher level assignments for complainant
and a female employee (F1) and two male employees (M1) (M2). A review
of the data does not establish that the assignments were based upon
sex in that the analysis shows that in the ninety-one-day period, F1
received 44 assignments, complainant received 48, M1 received 50, and
M2 received 53 assignments. Considering this analysis, the Commission
finds that complainant is unable to establish that she was subjected
to adverse treatment, or that similarly situated employees not in her
protected group were treated more favorably than she was under relatively
like circumstances. See McDonnell Douglas Corp. v. Green, supra.
Concerning complainant's contention as to the failure of management
officials to provide affidavits, the Commission admonishes and cautions
the agency that such practice is not in accordance with the Commission's
regulations. 29 C.F.R. � 1614.108(c)(3) states that when an agency's
employees fail without good cause shown to respond fully and in timely
fashion to requests for documents, records, comparative data, statistics,
affidavits or the attendance of witness(es), the investigator may note in
the investigative record that the decision maker should, or the Commission
on appeal may, in appropriate circumstances: (v) Take such other actions
as it deems appropriate.<1> While the EEO investigator correctly noted
in her report that the investigation was completed without a management
affidavit, the report otherwise contained sufficient information to
decide the accepted matter.
CONCLUSION
Therefore, after a careful review of the record as a whole, including
complainant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, we affirm the FAD.
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
October 22, 2002
Date
1 Notwithstanding an Administrative Judge's
(AJ) finding of no discrimination, an AJ's decision to order the agency to
conduct training for managers and supervisors, and post notices informing
employees that they have the right to oppose unlawful employment
practices, was held not to be an abuse of discretion, where agency
officials failed to cooperate with the EEO investigator. See Graham v
Department of Transportation, Appeal No. 01986978 (August 17, 2001).