0120112421
03-29-2012
Jesse L. Virgil, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Jesse L. Virgil,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112421
Agency No. 1F-901-0035-10
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated February 28, 2011, finding no discrimination. For the following
reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
In her complaint, dated July 19, 2010, Complainant, a Mail Processing
Clerk, at the Agency’s Los Angeles Processing and Distribution Center
(P&DC) in Los Angeles, California, alleged discrimination based on color
(light brown), sex (female), and age (over 40) when on February 18, 2010,
she was charged 8 hours of annual leave for attending the Combined Federal
Campaign (CFC) luncheon on February 17, 2010. After completion of the
investigation of the complaint, Complainant did not request a hearing.
The Agency thus issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.
ANALYSIS AND FINDINGS
After a review of the record, assuming arguendo that Complainant had
established a prima facie case of discrimination, we find that the Agency
has articulated legitimate, nondiscriminatory reasons for the alleged
incidents. Complainant claimed that she was charged 8 hours of annual
leave for attending CFC luncheon which was held on February 17, 2010.
Complainant’s supervisor stated that at the relevant time period,
the Agency was no longer compensating employees for the CFC luncheon
although it previously did. Complainant acknowledged this new policy.
Complainant’s manager indicated that employees, however, were allowed
to attend the CFC luncheon, but since the luncheon was not during the
Tour 1 operating window, the attendees could use an early checkout or
late reporting on the day of the luncheon utilizing their leave.
Complainant claimed that she was charged with annual leave on February
17, 2010, for attending the CFC luncheon and also on February 18, 2010,
where as others were not. The manager stated that Complainant was charged
with annual leave on February 17 or 18, 2010, because she did not work on
those days. The manager also indicated that one employee identified by
Complainant received administrative leave on February 17, 2010, because he
was the coordinator for the CFC and that three other employees identified
by Complainant were not charged with annual leave during the relevant
time period since they worked full tours. Upon review, we find that
Complainant failed to provide any similarly situated individuals outside
of her protected classes who were treated differently or more favorably.
After a review of the record, we find that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incident.
Based on the foregoing, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
3/29/12
__________________
Date
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0120112421
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112421