Romona D. Bynum, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 4, 2009
0120090471 (E.E.O.C. Mar. 4, 2009)

0120090471

03-04-2009

Romona D. Bynum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Romona D. Bynum,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090471

Agency No. 4C-440-0096-08

DECISION

Complainant filed an appeal from the agency's September 26, 2008 final

decision concerning her equal employment opportunity (EEO) complaint

alleging 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. and the Equal Pay Act of 1963, as amended,

29 U.S.C. � 206(d) et seq. For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Part Time Flexible Clerk at the agency's Lyndhurst/Mayfield Branch

facility in Cleveland, Ohio. On April 28, 2008, complainant filed an

EEO complaint alleging that she was discriminated against on the bases

of sex (female) and age (46) when:

1) From December 31, 2007 to the present, complainant had

received less pay than her male co-workers;

2) On February 18, 2008 (Presidents Day), complainant was

not paid;

3) On an unspecified date, complainant studied her scheme

at home and complainant was not paid; and

4) On an unspecified date, complainant was not given an

opportunity to bid on the Sunday/Monday layoff day vacancy at

the Lynhurst/Mayfield Station.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b).

In its decision, the agency found that complainant did not establish

a prima facie case of discrimination on any basis regarding any of

her claims.1 Specifically, the agency found that complainant did

not identify any male clerks who were paid more than she was paid.

With respect to claim (2), the agency found that complainant was paid

for February 18, 2008 (President's Day) and complainant presented no

evidence that she was not paid. Regarding claim (3), the agency found

that complainant presented no evidence that on any specific date that

she studied her scheme at home and did not receive pay. Regarding claim

(4), the agency found that no one was given an opportunity to bid on the

position in question. Instead, the agency found that the position was

awarded by the union to a clerk who was a union steward. Further, the

agency found no evidence showed that complainant's sex or age played any

role in any of the incidents of which complainant complained in claims

(1) through (4). The decision concluded that complainant failed to

prove that she was subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

We find the record supports the agency's final decision and we find no

reason on appeal to disturb the agency's decision. We note specifically

that the statements of the agency officials identified by complainant

as responsible for the actions described in the complaint remain wholly

unrebutted by any documentary evidence or other witness statements.

We AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 4, 2009

__________________

Date

1 Previously, the agency dismissed several of complainant's claims by

letter dated May 12, 2008. Complainant does not challenge the agency's

affirmation of the dismissed claims and we confine our decision to the

agency's decision regarding the claims accepted for investigation.

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0120090471

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090471