Levada Torres, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionSep 11, 2007
0120072990 (E.E.O.C. Sep. 11, 2007)

0120072990

09-11-2007

Levada Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Levada Torres,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120072990

Hearing No. 510-2007-00183X

Agency No. 1H-328-0029-06

DECISION

On June 15, 2007, complainant filed an appeal from the agency's May 11,

2007, final order concerning her equal employment opportunity (EEO)

complaint alleging 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 deemed timely and is accepted for de novo

review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission AFFIRMS the agency's final order.

At the time of events giving rise to this complaint, complainant worked

as a Mailhandler, M-04, at the Westchester Processing and Distribution

Center in White Plains, New York. On November 7, 2006, complainant

filed an EEO complaint alleging that she was discriminated against on the

basis of sex (female) and in reprisal for prior protected EEO activity

[arising under Title VII] when, on September 25, 2006, she became aware

that another employee's transfer request was approved while her transfer

request was denied.1

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. On March 10, 2007, the AJ assigned to the case

issued a "Notice of Intent to Dismiss", however, the Notice was sent to an

address other than that which was provided by complainant on her hearing

request form and on her formal complaint. Accordingly, on April 2, 2007,

the AJ issued an "Amended Notice of Intent to Dismiss" for the purpose

of reissuing the Notice to be sent to complainant's correct address.

A review of this record indicates however, that neither the initial

Notice nor the Amended Notice was sent to complainant's correct address.

The AJ then dismissed the case for lack of jurisdiction, noting that

complainant had not signed or dated her formal complaint. The agency

subsequently issued a final order on May 11, 2007, adopting the AJ's

finding of no discrimination.

We find that the AJ improperly found that the case ought to be dismissed

for lack of jurisdiction.2 There is no indication that complainant ever

received the Notice or Amended Notice of Intent to Dismiss the complaint.

Second, although the formal complaint was not signed or dated, and

although the issue was not clearly stated, the agency accepted and

investigated the complaint. Nevertheless, we find that the AJ's error

was harmless, in that a decision without a hearing in favor of the agency

would have been appropriate based on this record.

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). He

must generally establish a prima facie case by demonstrating that

he 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, complainant has not established a prima facie case of sex

discrimination because her comparator (whose transfer request was

granted) is also female. Further, there is no other evidence in this

record from which sex discrimination could be inferred. Nevertheless,

assuming that complainant established a prima facie case of sex and

reprisal discrimination, the agency has articulated a legitimate,

nondiscriminatory reason for its action, namely, complainant had live

discipline (a letter of warning) that did not expire until October 13,

2006, as well as attendance problems. Complainant has not presented

any persuasive evidence that the agency's reasons are more likely than

not pretext for discrimination.

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

AJ's decision without a hearing was appropriate, as no genuine issue

of material fact is in dispute. See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the

agency's final order.

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

September 11, 2007

__________________

Date

1 We note that the formal complaint was neither signed by complainant,

nor dated. In addition, complainant failed to clearly explain the nature

of her allegation of discrimination, other than to describe the individual

to whom she is comparing herself. However, it is clear from the EEO

Counselor's report that complainant's allegation is that on September

25, 2006, she became aware that another employee's transfer request

was approved while her transfer request was denied on the bases of sex

and reprisal. The agency issued an Acceptance letter dated November 24,

2006, accepting the issue as such. Accordingly, we find that the formal

complaint is valid as accepted by the agency.

2 We note however, that on appeal complainant did not argue that the AJ

was wrong to dismiss the case for lack of jurisdiction.

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0120072990

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036