01a03606
09-05-2000
Meggie M. Lee, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service. (N.E./N.Y. Metro Region), Agency.
Meggie M. Lee v. United States Postal Service (N.E./N.Y. Metro Region)
01A03606
September 5, 2000
.
Meggie M. Lee,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service.
(N.E./N.Y. Metro Region),
Agency.
Appeal No. 01A03606
Agency No. 1A-111-0063-98
Hearing No. 160-AO-8267X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) 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.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). Complainant alleges she
was discriminated against on the basis of reprisal for prior EEO
activity when she was told to report to the Delivery Bar Code Sorter #5
(automation) while employees junior to her did not have to go.
For the following reasons, the Commission AFFIRMS the agency's final
action.
The record reveals that complainant, a Distribution Clerk, PS-5, at the
agency's Queens Processing & Distribution Center facility in Flushing,
New York, filed a formal EEO complaint with the agency on May 4, 1998,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Determining that there was no genuine issue
of material fact, however, the AJ issued a decision without a hearing,
finding no discrimination.
Inasmuch as the AJ found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions, the AJ proceeded directly
to the third step of the McDonnell Douglas analysis. i.e., whether
complainant has shown by a preponderance of the evidence that the
agency's action was motivated by discrimination, citing United States
Postal Service v. Aikens, 460 U.S. 711, 713-14 (1983).
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that
complainant was sent to automation based on the needs of the service and
that no similarly situated employees junior to complainant were treated
more favorably. The agency's final action implemented the AJ's decision.
Neither complainant nor the agency makes any contentions on appeal.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity. In this regard, we note
that while employees junior to complainant were not sent to automation,
they were working in different operations and therefore were not similarly
situated to complainant. Furthermore, of those employees specifically
mentioned by complainant as having less seniority, the sole less senior
employee was on sick leave on the date in question. Finally, the record
shows that complainant was sent to automation because clerks senior to
her were on their secondary scheme, but that complainant was not needed
on her secondary scheme. Hence, we discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 5, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.