01a52915r
09-08-2005
Maria De Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Region) Agency.
Maria De Lopez v. United States Postal Service
01A52915
September 8, 2005
Maria De Lopez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Region)
Agency.
Appeal No. 01A52915
Agency No. 1F-901-0137-03
Hearing No. 340-2004-00325X
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 Transitional Employee (TE) at the
agency's Los Angeles facility, filed a formal EEO complaint on March 8,
2005, alleging that the agency discriminated against her on the bases
of race (Hispanic), national origin (Mexican), sex (female), religion
(Catholic), color (Brown), and age (D.O.B. June 27, 1960) when she was
terminated from TE employment and was not offered casual employment.
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, adopting the
agency's factual findings and conclusions of law in the entirety.
After a careful review of the record, despite the fact that he AJ did no
independent legal analysis, the Commission finds that the issuance of a
decision without a hearing was appropriate. Construing the evidence to be
most favorable to complainant, we find that complainant failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus toward complainant's protected classes. Complainant brought her
complaint under Title VII, which prohibits employment discrimination
based on race, color, religion, sex, or national origin, and the ADEA,
which prohibits age discrimination in employment; however, she does not
actually allege discrimination under either of these statutes. In fact,
complainant explicitly admitted that the agency's employment decision
was not motivated by her race, religion, sex, national origin, color,
or age. Deposition at 22 and 53. Rather, when asked on what basis she
was discriminated against, she stated, �Because I wasn't offered the job
to the other people. I was the only person that wasn't.� Deposition at 22.
Further, in her brief to the Commission, complainant states, �I conclude
strongly that I was discriminatory [sic] terminated and my EEO was not
about discrimination due to race, color, or age.� Complainant's Brief
in Support of Appeal at 2.
We cannot ascertain from the record why complainant filed the instant
complaint although in her response to the agency's motion for summary
judgment, it seems that complainant believed the agency failed to follow
standard operating procedures in regard to rehiring TEs. Absent evidence
of unlawful discrimination, the Commission has no authority to review
the agency's rehiring decisions. For these reasons, the Commission
AFFIRMS the agency's final order.
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
_September 8, 2005______________
Date