01A00184
10-03-2002
Olivia Vargas v. United States Postal Service
01A00184
10-03-02
.
Olivia Vargas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00184
Agency No. 1A-111-0035-99
DECISION
Complainant timely initiated an appeal from a final decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
discrimination based on national origin (Hispanic), color (dark), sex
(female), age (d.o.b. 5/16/58), physical disability (bilateral carpal
tunnel syndrome), and reprisal (prior EEO activity) in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.;and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791, et seq., when: (1) on December 31, 1998,
complainant was notified that due to operational needs, her bid as a
general clerk would be reposted, and (2) effective January 9, 1999,
complainant would be become an unassigned regular clerk. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a Distribution Clerk, PS-5 at
the agency's Flushing, New York facility, filed a formal EEO complaint
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant was provided
a copy of the investigative report. When complainant failed to respond
within the time period specified in 29 C.F.R. � 1614.108(f), the agency
issued a final decision.<1>
In its FAD, the agency concluded that complainant failed to establish
a prima facie case on any of the bases alleged. Moreover, the agency
explained that the general clerk bid complainant previously held had
Tuesday and Thursday rest days. In order to provide steady coverage by
one person from Monday through Friday, the bid in question was reposted
with Saturday and Sunday rest days. The agency noted that a Senior
Qualified Clerk was awarded the preferred duty assignment. The agency
further explained that in order to soften the impact on complainant
as an unassigned regular, complainant's request for a schedule change
was granted. The agency concluded by finding that complainant failed
to persuasively show that the agency's decision was anything but
discretionary.
On appeal, complainant contends that the agency's explanation contradicts
its first position that the bid was abolished. Complainant argues that
the non-scheduled days were changed from Tuesday and Thursday to Saturday
and Sunday in order to remove her from the Tour Office because of the
hostility between complainant and another employee. The agency requests
that we affirm its FAD.
Notwithstanding complainant's statement on appeal that the reason
the nonscheduled days were changed was because she was involved in
an altercation with a fellow employee, and not based on her disabling
condition, we will assume for purposes of this analysis that complainant
is an individual with a disability as defined by the Rehabilitation Act.
Complainant's allegations of discrimination based on race, sex, age, and
disability constitute claims of disparate treatment which are properly
analyzed under the three-tier order and allocation of proof as set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In addition,
in order to prevail on her age discrimination claim, complainant bears
the burden of persuasion to show that age was a determinative factor
in the agency's decision. See Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979).
However, the McDonnell Douglas analytical paradigm need not be adhered
to in all cases. In appropriate circumstances, when the agency has
articulated legitimate, nondiscriminatory reasons for its conduct, the
trier of fact may dispense with the prima facie inquiry and proceed to
the ultimate stage of the analysis, i.e., whether the complainant has
proven by preponderant evidence that the agency's explanations were a
pretext for discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Shapiro v. Social
Security Administration, EEOC Request No. 05960403 (December 6,
1996). Since the agency has articulated a legitimate, nondiscriminatory
reason for its decision, the Commission will consider whether the agency's
explanation for its decision was a pretext for discrimination.
The agency stated that due to operational needs and coverage the
complainant's bid was reposted and complainant change of schedule was
granted upon her request. Complainant's assertions that the agency's
explanation is contradictory is not supported by the record. Moreover,
the record fails to establish that the agency's motivation for its
actions was based on any of the alleged bases. The Commission finds
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, 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
____10-03-02______________
Date
1On appeal, complainant's representative, not identified as an attorney,
argued that the agency failed to notify him of the conclusion of
the investigation and the instructions for requesting a hearing on
complainant's behalf. However, the evidence of record shows that
complainant received the investigative report and instructions on
requesting a hearing at her place of residence as evidenced by her
signature on the certified mailing receipt. Accordingly, we find that
complainant had actual knowledge of the applicable time limits and failed
to request a hearing within the said time limits.