01a50162
04-07-2005
Lena Risper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Lena Risper v. United States Postal Service
01A50162
April 7, 2005
.
Lena Risper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A50162
Agency No. IJ-603-0023-04
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. 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 Custodial Laborer at the agency's South Suburban Processing
and Distribution Center (P&DC), located in Bedford Park, Illinois.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 20, 2004, alleging that she was discriminated
against on the bases of race (African-American) and sex (female) when
on February 8, 2004, her supervisor (S1) constantly watched her and gave
her larger than normal routes as compared to the male custodians.
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 established a
prima facie case of race and sex discrimination. Specifically, the agency
found that complainant failed to established that she was subjected to an
adverse employment action, and that other similarly situated employees
were treated more favorably than her under similar circumstances.
The agency identified four males custodians (3 White, 1 Black) who were
assigned the same routes as complainant on February 8, 2004. The agency
also found that assuming that complainant established a prima facie
case, management has proffered a legitimate non-discriminatory reason
for its actions. The agency found that on the date of the alleged
incident, S1 was instructed to distribute work assignments that had
been decided upon by another supervisor (S2). The agency also found
that S1 did not continually watch complainant or any other custodian,
but that his duties as an acting supervisor required that he monitor
employees to ensure work assignments are completed. Complainant makes
no new contentions on appeal. The agency requests that we affirm its FAD.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination. She can do this by establishing that similarly
situated individuals outside of her protected classes were treated more
favorably than she was or by setting forth some other evidence from which
a reasonable fact-finder could draw an inference of discrimination.
See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Complainant failed to establish that any similarly situated employee
out of her protected group was treated more favorably under similar
circumstances. The record reveals that complainant's routes have been
assigned to other custodial laborers. Specifically, the four males noted
above. We also find that nothing in the record show that S1 constantly
watched complainant work. The record reveals that S1 monitored all
employees, not just complainant, to ensure work assignments are completed.
Further, we conclude that complainant did not set forth any other evidence
from which we could draw an inference of sex or race discrimination.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, 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
April 7, 2005
__________________
Date