Luana F. Martin, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01A34734_r (E.E.O.C. Dec. 1, 2003)

01A34734_r

12-01-2003

Luana F. Martin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.


Luana F. Martin v. United States Postal Service

01A34734

December 1, 2003

.

Luana F. Martin,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area)

Agency.

Appeal No. 01A34734

Agency No. 4C-164-0053-01

Hearing No. 170-A2-8250X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and

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. In her formal complaint, complainant alleged that the

agency discriminated against her on the bases of sex (female) and age

(D.O.B. 2/16/57) when on May 23, 2001, the agency terminated her from

a probationary position as city letter carrier.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). On June 11, 2003, the AJ issued a notice of intent to issue a

decision without a hearing to both parties. The AJ subsequently issued a

decision without a hearing, finding no discrimination because complainant

failed to establish a prima facie case of discrimination. The agency

fully implemented the AJ's decision in its final order dated July 9, 2003.

In a claim such as the instant one which alleges disparate treatment based

upon sex and age, and where there is an absence of direct evidence of such

discrimination, the allocation of burdens and order of presentation of

proof is a three-step process. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 142 (2000) (applying the analytical framework described in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA

disparate treatment claim). First, complainant must establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

Kimble v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22,

2001).

Here, there is no dispute over the evidence of record showing that

similarly situated employees outside of her protected group were treated

more favorably under similar circumstances. Complainant maintains

that an inference of discrimination exists because the agency used a

male rural carrier as a substitute city carrier on multiple occasions

from May 26, 2001 to June 4, 2001, although he was ineligible to work

as a city carrier. However, we find that there is no evidence in the

record that this person replaced complainant after her termination or

was a probationary employee who was similarly situated with complainant

under similar circumstances. Further, complainant failed to present

any other evidence from which an inference of discrimination can be

drawn. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

Therefore, we find that she has failed to establish a prima facie case

of sex or age discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate, see Petty v. Department of Defense, EEOC Appeal

No. 01A24206 (July 11, 2003), and a preponderance of the record evidence

does not establish that discrimination occurred.

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

_December 1, 2003_________________

Date