01A32388
04-06-2004
Rose Martin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Rose Martin v. United States Postal Service
01A32388
April 6, 2004
.
Rose Martin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A32388
Agency No. 1E-891-0011-01
Hearing No. 340-A0-3219X
DECISION
Complainant timely initiated an appeal from a final agency decision
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 for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.<1>
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Las Vegas Processing &
Distribution (P&D) Center in Nevada. Complainant sought EEO counseling
and subsequently filed a formal complaint on February 13, 2001, alleging
that she was discriminated against on the basis of age and in reprisal
for prior EEO activity (arising under Title VII) when she was denied
overtime December 4-7, 2000. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency.
Complainant originally requested a hearing and it appears that she had
several hearing requests pending before the Commission's Los Angeles
District Office. On December 30, 2002, an EEOC Administrative Judge
denied her December 15, 2002 request to postpone the hearing and restated
that it was scheduled for January 9, 2003. In its final decision, the
agency states that in response to the Administrative Judge's decision,
complainant withdrew her hearing request, and on January 6, 2003, the
Administrative Judge remanded the case to the agency for the issuance
of a final decision.
In its final decision, the agency concluded that complainant failed to
establish a prima facie case of discrimination on either of her alleged
bases. The agency stated that it believed complainant was alleging
that the use of Scheme Aid Machines (SAMs) to help distribute mail in
a timely manner, specifically in her scheme, impacted on the overall
amount of overtime she to which she believed she would be otherwise
entitled, but that the SAMs were used more frequently in the scheme
where complainant worked because that scheme had more delayed mail,
not because of complainant's protected classes.
On appeal, complainant makes the same argument made by her representative
in his related appeal, EEOC Appeal No. 01A32387, that the Commission
should consider the motion for summary judgment in her favor that
she submitted to the Administrative Judge and that the agency failed
to address claims of discrimination raised in complainant's other
complaints.<2> Complainant requests that all of her complaints be
remanded for investigation, redress, and the scheduling of a hearing.
Complainant does not refute the agency's statement that she withdrew
her hearing request.
Upon review of the record, we conclude that complainant has failed
to prove, by a preponderance of the evidence that, assuming arguendo
complainant was denied any overtime, such denial was motivated by unlawful
discriminatory animus. Accordingly, the Commission AFFIRMS 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
April 6, 2004
__________________
Date
1 This case is being issued concurrently with the Commission's decision
in Arayaes v. United States Postal Service, EEOC Appeal No. 01A32388.
Complainant Arayaes is complainant's representative in the instant
complaint, and their cases were at some point consolidated for processing
by the agency.
2 In the motion for summary judgment, complainant's argument concerns the
agency's decision to use SAMs at the P&D Center. Complainant attached the
front page caption of an arbitrator's decision that suggests management
violated a union agreement when it used non-scheme qualified �ODL�
employees, assisted by SAMs, on straight time, in order to avoid penalty
overtime for scheme-qualified �ODL� employees.