01a52362
06-14-2005
Nancy M. Ware, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western) Agency.
Nancy M. Ware v. United States Postal Service
01A52362
06-14-05
.
Nancy M. Ware,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western)
Agency.
Appeal No. 01A52362
Agency No. 1E-997-0002-03
Hearing No. 380-2004-00108X
DECISION
Complainant timely initiated an appeal from the agency's final order
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Mail Processing Clerk, PS-5, at
the agency's Anchorage Processing and Distribution Center, in Anchorage,
Alaska, filed a formal EEO complaint on March 14, 2003, alleging that
the agency discriminated against her on the basis of sex and retaliated
against her for prior EEO activity when on October 5, 2002, she was not
permitted to work on the registry cage.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal. On appeal, we review
the FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). With regard to her claims of sex discrimination
and retaliation, we find that complainant failed to proffer sufficient
evidence to established that a genuine issue of material fact exists
such that a hearing on the merits is warranted. In so finding, we note
that the record supports the AJ's finding that the management officials
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, complainant accepted a modified duty assignment that
restricted the hours that she could work on the registry cage to four
hours daily. The record supports the AJ's finding that complainant
already worked two hours on the day in question. Further, complainant
admitted that her supervisor did not want for her to work on the registry
cage when the work exceeded complainant's thirty pound weight restriction.
Complainant does not offer any evidence to rebut the agency's proffered
reasons or to demonstrate that they are a pretext for discrimination.
We note that complainant must designate specific facts to show that there
are genuine issues for a hearing. Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). Because complainant failed to do
so, we find that the AJ appropriately issued decision without a hearing
on the merits.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
This is because the Administrative Judge's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
viewed in the light most favorable to complainant does not establish
that a genuine issue of fact exists as to whether discrimination occurred.
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
____06-14-05___________________________
Date