01A34734_r
12-01-2003
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