Linda A. Modetz, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionMar 17, 1999
01972223 (E.E.O.C. Mar. 17, 1999)

01972223

03-17-1999

Linda A. Modetz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Linda A. Modetz, )

Appellant, )

) Appeal No. 01972223

v. ) Agency No. 4E-870-1066-95

) Hearing No. 350-95-8318X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of sex (female), reprisal (prior

EEO activity), and age (DOB 07/09/47), in violation of Title VII of

the Civil Rights Act of 1964, 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. Appellant alleges she was discriminated against

when: (1) she was subject to ongoing harassment; (2) her reporting

time was changed; and (3) she was denied advancement opportunities.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was employed

as the Customer Service Manager at the agency's Coronado Station in

Santa Fe, New Mexico. The post office in San Fe consisted of the main

office and the Coronado Station. Appellant was essentially Coronado's

Station Manager. In August of 1993, Santa Fe received a new Postmaster

(�PM�) (male, DOB 09/04/49, no prior EEO activity). Appellant stated

that immediately after the PM started his job, she informed him

of the situation at her station and requested that he address the

station's needs. She stated that her requests were generally ignored by

the PM. The PM stated that when he began in Santa Fe, he was completely

overwhelmed by the task at hand. He admitted to not being responsive to

certain inquires from appellant and others, but also stated that most of

appellant's requests for the Coronado Station were eventually provided.

In or about March 1994, appellant informed the PM that her position

met the criteria for an upgrade and requested that the PM prepared the

necessary paperwork for such an upgrade. Appellant stated that the PM

did not act promptly in submitting the paperwork. The PM stated that

part of delay resulted because he lost the original paperwork presented

to him by appellant. He also stated that it was not in his discretion

as to whether appellant would receive the upgrade because the upgrades

are based on the number of routes under the supervisor and automatically

occur when the supervisor's routes meet that number. Appellant also

stated that on or about January 5, 1995, after she returned to work

following a surgery, she was informed by the PM that her duty hours had

been changed, so that she was working until 6:30 p.m. She informed the

PM that the change interfered with a therapeutic swimming course she

planned to take. However, the PM stated that she could not change her

work hours because he believed that she should be at station during its

critical period which ended at 6:30 p.m.

Believing she was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a formal complaint on February

11, 1995. At the conclusion of the investigation, appellant received

a copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a

Recommended Decision (RD) finding no discrimination. The AJ concluded

that appellant failed to establish prima facie cases of gender, age or

reprisal discrimination because she had not shown that any similarly

situated employee not in her protected classes were treated differently

under similar circumstances. The AJ also concluded that appellant

failed to establish a prima facie case of harassment because the events

in question did not rise to the level of �severe and pervasive.� The

AJ nevertheless concluded that through the PM, the agency articulated

legitimate, nondiscriminatory reasons for its actions. Finally,

the AJ found that appellant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination or retaliation. The agency's FAD adopted the AJ's RD.

Appellant makes no new contentions on appeal, and the agency requests

that we affirm the FAD.

After a careful review of the record in its entirety, including the

statements submitted on appeal, the Commission finds that the AJ's

RD sets forth the relevant facts and properly analyzes the appropriate

regulations, policies and laws. Nothing proffered by appellant on appeal

differs significantly from the arguments presented at the hearing and

given full consideration by the AJ. Therefore, the Commission discerns no

basis upon which to overturn the AJ's finding of no discrimination in this

matter. In this regard, the AJ made specific credibility findings which

are entitled to deference due to the AJ's first-hand knowledge, through

personal observation, of the demeanor and conduct of the witnesses.

See Esquer v. United States Postal Service, EEOC Request No. 05960096

(September 6, 1996); Willis v. Department of the Treasury, EEOC Request

No. 05900589 (July 26, 1990). Accordingly, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's final

decision which adopted the AJ's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

March 17, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations