Crystal Shakespeare, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionMar 31, 2005
01a51796 (E.E.O.C. Mar. 31, 2005)

01a51796

03-31-2005

Crystal Shakespeare, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Crystal Shakespeare v. United States Postal Service

01A51796

March 31, 2005

.

Crystal Shakespeare,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 01A51796

Agency No. 4J-481-0072-03

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. For the

following reasons, the Commission affirms the agency's final decision.

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

as a City Carrier at the agency's Fenkell Station in Detroit, Michigan.

Complainant sought EEO counseling and subsequently filed a formal

complaint on October 2, 2003, alleging that she was discriminated against

on the bases of sex (female), age (D.O.B. December 14, 1959), and reprisal

for prior EEO activity when on January 16, 2003, management overloaded her

case with mail and she was not provided with the assistance she requested.

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. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

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

a prima facie case of sex or age discrimination because she failed

to identify any similarly situated employees, outside her protected

classes, who were treated more favorably under similar circumstances.

The agency also concluded that complainant failed to establish a prima

facie case of reprisal discrimination because she was not subjected

to any adverse action. The agency concluded, however, that even

assuming, arguendo, complainant established a prima facie case on all

alleged bases, it nonetheless articulated legitimate, nondiscriminatory

reasons for its actions. Specifically, complainant's supervisor (S1)

stated that complainant was denied assistance because her route was not

overburdened on January 16, 2003. (Report of Investigation, Affidavit

B, 5). Additionally, S1 stated that complainant requested assistance

every morning, regardless of the volume of mail in her case, and that

it was often denied because she was not throwing mail to standard. Id.

The FAD concluded that complainant failed to establish, by a preponderance

of the evidence, that the agency's articulated reasons are a pretext

for sex, age, or reprisal discrimination.

Complainant makes no contentions on appeal. The agency requests that

we affirm its FAD.

As a preliminary matter, we review the decision on an appeal from a FAD

issued without a hearing de novo. 29 C.F.R. � 1614.405(a). To prevail

in a disparate treatment claim such as this, complainant must satisfy the

three-part evidentiary scheme fashioned by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish

a prima facie case by demonstrating that she was subjected to an adverse

employment action under circumstances that would support an inference

of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,

576 (1978). The prima facie inquiry may be dispensed with in this case,

however, 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.

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).

Here, we find that assuming, arguendo, complainant established a prima

facie case of sex, age, and reprisal discrimination, the agency has

articulated legitimate, nondiscriminatory reasons for its actions.

We also find that complainant has failed to show, by a preponderance

of the evidence, that the agency's articulated reasons for its actions

were pretextual, or were motivated by discriminatory or retaliatory

animus. We note that the record supports the agency's contention that

complainant's case was not overburdened on January 16, 2003. (R.O.I.,

Summary, 4; Affidavit C, 4; Exhibit 8). Therefore, after a careful

review of the record, 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

March 31, 2005

__________________

Date