01A31117_r
12-01-2003
Mary L. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Mary L. Walker v. United States Postal Service
01A31117
December 1, 2003
.
Mary L. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01A31117
Agency No. 4E-890-0017-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. In her formal
complaint, complainant alleged that she was subjected to unlawful
discrimination on the bases of sex (female), age ( 2/1/49), and in
reprisal for prior EEO activity when on September 18 and October 20,
1998, the agency failed to pay her the correct amount owed for time she
was on administrative leave.
The final decision concluded that complainant failed to establish a
prima facie case of discrimination. The final decision further found
that the agency offered legitimate, non-discriminatory reasons for its
action that were not persuasively rebutted by complainant as pretext
for discrimination or retaliation.
As a preliminary matter, we note that we review the decision on an
appeal from a final agency decision de novo. 29 C.F.R. 1614.405(a).
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence warrants
a modification of the agency's remedial ruling. See 29 C.F.R. 1614.405(a).
We note that the prima facie inquiry may be dispensed with in this
case since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To
ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination
or retaliation. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case
of discrimination and retaliation, we note that the agency offered
legitimate, non-discriminatory reasons for the shortfall in complainant's
paycheck. The Postmaster responded that he was responsible for submitting
the form approving complainant's administrative leave to the District
Manager, but delegated this responsibility to the acting manager because
he was absent on September 4 and 5, 1998. The Postmaster stated that
when after he returned to work, he noticed that complainant had not been
credited with the proper administrative leave and notified the manager of
the postal station to prepare a salary advance for complainant to remedy
the paperwork error. Upon review, we find that complainant failed to
offer any persuasive rebuttal evidence that establishes the agency's
legitimate, non-discriminatory explanation as pretext for unlawful
discrimination or retaliation.
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 final agency
decision.
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
_December 1, 2003_________________
Date