01972223
03-17-1999
Linda A. Modetz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Linda A. Modetz, )
Appellant, )
) Appeal No. 01972223
v. ) Agency No. 4E-870-1066-95
) Hearing No. 350-95-8318X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female), reprisal (prior
EEO activity), and age (DOB 07/09/47), in violation of Title VII of
the Civil Rights Act of 1964, 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. Appellant alleges she was discriminated against
when: (1) she was subject to ongoing harassment; (2) her reporting
time was changed; and (3) she was denied advancement opportunities.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as the Customer Service Manager at the agency's Coronado Station in
Santa Fe, New Mexico. The post office in San Fe consisted of the main
office and the Coronado Station. Appellant was essentially Coronado's
Station Manager. In August of 1993, Santa Fe received a new Postmaster
(�PM�) (male, DOB 09/04/49, no prior EEO activity). Appellant stated
that immediately after the PM started his job, she informed him
of the situation at her station and requested that he address the
station's needs. She stated that her requests were generally ignored by
the PM. The PM stated that when he began in Santa Fe, he was completely
overwhelmed by the task at hand. He admitted to not being responsive to
certain inquires from appellant and others, but also stated that most of
appellant's requests for the Coronado Station were eventually provided.
In or about March 1994, appellant informed the PM that her position
met the criteria for an upgrade and requested that the PM prepared the
necessary paperwork for such an upgrade. Appellant stated that the PM
did not act promptly in submitting the paperwork. The PM stated that
part of delay resulted because he lost the original paperwork presented
to him by appellant. He also stated that it was not in his discretion
as to whether appellant would receive the upgrade because the upgrades
are based on the number of routes under the supervisor and automatically
occur when the supervisor's routes meet that number. Appellant also
stated that on or about January 5, 1995, after she returned to work
following a surgery, she was informed by the PM that her duty hours had
been changed, so that she was working until 6:30 p.m. She informed the
PM that the change interfered with a therapeutic swimming course she
planned to take. However, the PM stated that she could not change her
work hours because he believed that she should be at station during its
critical period which ended at 6:30 p.m.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on February
11, 1995. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding no discrimination. The AJ concluded
that appellant failed to establish prima facie cases of gender, age or
reprisal discrimination because she had not shown that any similarly
situated employee not in her protected classes were treated differently
under similar circumstances. The AJ also concluded that appellant
failed to establish a prima facie case of harassment because the events
in question did not rise to the level of �severe and pervasive.� The
AJ nevertheless concluded that through the PM, the agency articulated
legitimate, nondiscriminatory reasons for its actions. Finally,
the AJ found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
RD sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Nothing proffered by appellant on appeal
differs significantly from the arguments presented at the hearing and
given full consideration by the AJ. Therefore, the Commission discerns no
basis upon which to overturn the AJ's finding of no discrimination in this
matter. In this regard, the AJ made specific credibility findings which
are entitled to deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses.
See Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996); Willis v. Department of the Treasury, EEOC Request
No. 05900589 (July 26, 1990). Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision which adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
March 17, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations