Irma Baca, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 2003
01A24519 (E.E.O.C. Oct. 6, 2003)

01A24519

10-06-2003

Irma Baca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Irma Baca v. United States Postal Service

01A24519

October 6, 2003

.

Irma Baca,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24519

Agency Nos. 4F-926-0298-97; 4F-926-0114-98; 4F-926-0046-99;

4F-926-0166-99;

4F-926-0183-99; 4F-926-0124-00; 4F-926-0153-00

Hearing Nos. 340-98-3813X; 340-98-4255X; 340-99-3723X; 340-A0-3310X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaints 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 Part-Time Flex Distribution Clerk

at the agency's La Verne Post Office, in La Verne, California, filed

seven formal EEO complaints, alleging that the agency had discriminated

against her on the bases of national origin (Hispanic), sex (female),

age (D.O.B. May 20, 1948), and reprisal for prior EEO activity when

various incidents involving work hours, work loads, denials of leave,

and disciplinary actions occurred from July 1997 through September 2000.

The complaints were investigated. Following the investigations,

complainant requested a hearing by an EEOC Administrative Judge (AJ1).

On November 6, 2001, AJ1 issued an order granting summary judgment

but did not issue a final binding decision. Following a telephonic

conference with the parties and their representatives, a second AJ

(AJ2) ordered complainant to re-file any responses by April 15, 2002.

Complainant failed to submit any response to AJ2. On April 25, 2002, AJ2

issued a notice to both parties and their representatives regarding her

intention to issue a decision without a hearing in favor of the agency

on all complaints except for the most recent complaint, namely Agency

No. 4-F-926-0153-00. AJ2 received a change of address for complainant

and re-sent her a copy of the April 25 Notice.<1> Again, complainant

provided no response. AJ2 ordered that if the agency sought summary

judgment on Agency Case No. 4-F-926-0153-00, it would have to file such a

motion. The agency filed its motion for summary judgment on May 7, 2002.

AJ2 provided complainant an opportunity to respond to the agency's motion.

Complainant did not respond to the agency's motion.

AJ2 indicated the undisputed facts of the case at hand.<2> AJ2 determined

that there was no genuine issue of material fact. Based upon the record,

AJ2 concluded that complainant failed to establish a prima facie case of

discrimination based on sex, national origin, age or reprisal. Therefore,

she rendered her decision without a hearing in favor of the agency.

The agency's final order implemented the AJ's decision. This appeal

followed. Complainant makes no contentions on appeal, and the agency

requests that we affirm its final order.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that any

of the agency's actions were motivated by discriminatory animus toward

complainant's protected classes. Accordingly, the Commission affirms

the agency's final order finding no discrimination.

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

October 6, 2003

__________________

Date

1AJ2 noted that all notices and orders were received by complainant's

representative of record.

2AJ2 stated that complainant failed to dispute any facts even when given

several opportunities to do so.