01a41033
03-31-2005
Patricia A. McDermott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patricia A. McDermott v. United States Postal Service
01A41033
March 31, 2005
.
Patricia A. McDermott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41033
Agency No. 4A-117-0056-02
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency subjected her to a hostile work
environment and discriminated against her, in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq., on the bases of sex (female)
and age (D.O.B. 11/13/58) when: (1) on or about January 2002, her route
was increased; (2) from March 7, 2002 through April 2, 2002, management
followed her on her route; (3) on March 11, 2002, she was not paid for the
overtime worked;<1> and (4) her request for a route adjustment was denied.
Complainant initiated EEO counseling on April 1, 2002 and filed her formal
EEO complaint on October 19, 2002. Thereafter, the agency dismissed
Issue 1 for untimely EEO contact. Complainant argues on appeal, inter
alia, that Issue 1 was not properly dismissed since the effective date
of the route adjustment was March 21, 2002. The record is not clear
as to the effective date of the route adjustment. However, we find
that despite the dismissal, the investigation did address the January
2002 route adjustment. Management officials provided a legitimate,
non-discriminatory explanation for the January 2002 route adjustment.
Assuming complainant's contention that she was the only letter carrier
who received an increase in her deliveries, we find the record does not
support the assertion that management's actions were motivated by sex
or age. The record shows that women and men of all ages had their routes
adjusted. Even assuming that complainant was treated unfairly compared
to her similarly situated co-workers, the record supports the finding
that such unfair treatment was due to a personal dislike of complainant
because she would not agree with management's opinions and decisions.
(See complainant's affidavit, pg. 2). Accordingly, even assuming the
truth of the allegations, the record does not support a finding that
the agency's conduct was motivated by discriminatory animus.
Accordingly, 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 decision because the preponderance of the evidence of record does
not establish that 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
March 31, 2005
__________________
Date
1 While the agency framed this allegation as a failure to pay overtime,
complainant has consistently argued that she is not claiming unpaid
overtime, but rather harassment in that she was reprimanded on the
workroom floor for taking unauthorized overtime, despite being told to
stay out and complete her route.