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.