Olivia Vargas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 3, 2002
01A00184 (E.E.O.C. Oct. 3, 2002)

01A00184

10-03-2002

Olivia Vargas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Olivia Vargas v. United States Postal Service

01A00184

10-03-02

.

Olivia Vargas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A00184

Agency No. 1A-111-0035-99

DECISION

Complainant timely initiated an appeal from a final decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

discrimination based on national origin (Hispanic), color (dark), sex

(female), age (d.o.b. 5/16/58), physical disability (bilateral carpal

tunnel syndrome), and reprisal (prior EEO activity) in violation of

Title VII of the Civil Rights Act of 1964, 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 Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791, et seq., when: (1) on December 31, 1998,

complainant was notified that due to operational needs, her bid as a

general clerk would be reposted, and (2) effective January 9, 1999,

complainant would be become an unassigned regular clerk. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission AFFIRMS the agency's final decision.

The record reveals that complainant, a Distribution Clerk, PS-5 at

the agency's Flushing, New York facility, filed a formal EEO complaint

alleging that the agency had discriminated against her as referenced

above. At the conclusion of the investigation, complainant was provided

a copy of the investigative report. When complainant failed to respond

within the time period specified in 29 C.F.R. � 1614.108(f), the agency

issued a final decision.<1>

In its FAD, the agency concluded that complainant failed to establish

a prima facie case on any of the bases alleged. Moreover, the agency

explained that the general clerk bid complainant previously held had

Tuesday and Thursday rest days. In order to provide steady coverage by

one person from Monday through Friday, the bid in question was reposted

with Saturday and Sunday rest days. The agency noted that a Senior

Qualified Clerk was awarded the preferred duty assignment. The agency

further explained that in order to soften the impact on complainant

as an unassigned regular, complainant's request for a schedule change

was granted. The agency concluded by finding that complainant failed

to persuasively show that the agency's decision was anything but

discretionary.

On appeal, complainant contends that the agency's explanation contradicts

its first position that the bid was abolished. Complainant argues that

the non-scheduled days were changed from Tuesday and Thursday to Saturday

and Sunday in order to remove her from the Tour Office because of the

hostility between complainant and another employee. The agency requests

that we affirm its FAD.

Notwithstanding complainant's statement on appeal that the reason

the nonscheduled days were changed was because she was involved in

an altercation with a fellow employee, and not based on her disabling

condition, we will assume for purposes of this analysis that complainant

is an individual with a disability as defined by the Rehabilitation Act.

Complainant's allegations of discrimination based on race, sex, age, and

disability constitute claims of disparate treatment which are properly

analyzed under the three-tier order and allocation of proof as set forth

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

in order to prevail on her age discrimination claim, complainant bears

the burden of persuasion to show that age was a determinative factor

in the agency's decision. See Loeb v. Textron, Inc., 600 F.2d 1003

(1st Cir. 1979).

However, the McDonnell Douglas analytical paradigm need not be adhered

to in all cases. In appropriate circumstances, when the agency has

articulated legitimate, nondiscriminatory reasons for its conduct, the

trier of fact may dispense with the prima facie inquiry and proceed to

the ultimate stage of the analysis, i.e., whether the complainant has

proven by preponderant evidence that the agency's explanations were a

pretext for discrimination. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Shapiro v. Social

Security Administration, EEOC Request No. 05960403 (December 6,

1996). Since the agency has articulated a legitimate, nondiscriminatory

reason for its decision, the Commission will consider whether the agency's

explanation for its decision was a pretext for discrimination.

The agency stated that due to operational needs and coverage the

complainant's bid was reposted and complainant change of schedule was

granted upon her request. Complainant's assertions that the agency's

explanation is contradictory is not supported by the record. Moreover,

the record fails to establish that the agency's motivation for its

actions was based on any of the alleged bases. The Commission finds

that complainant failed to present evidence that more likely than not,

the agency's articulated reasons for its actions were a pretext for

discrimination.

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 FAD.

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

____10-03-02______________

Date

1On appeal, complainant's representative, not identified as an attorney,

argued that the agency failed to notify him of the conclusion of

the investigation and the instructions for requesting a hearing on

complainant's behalf. However, the evidence of record shows that

complainant received the investigative report and instructions on

requesting a hearing at her place of residence as evidenced by her

signature on the certified mailing receipt. Accordingly, we find that

complainant had actual knowledge of the applicable time limits and failed

to request a hearing within the said time limits.