0120093833
05-03-2011
Martin S. Montoya, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Martin S. Montoya,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093833
Hearing No. 540-2007-0011X
Agency No. 4G-870-0116-06
DECISION
On September 22, 2009, Complainant filed an appeal from the Agency’s
Agency’s August 20, 2009, final order concerning his equal employment
opportunity (EEO) complaint alleging that the Agency discriminated against
him, in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq, on the bases of age (50
years old) and in reprisal for prior protected EEO activity when: in 2006,
the Agency re-categorized and readjusted his mail route, reducing it in
size and responsibility, and gave him inferior day-off options, thereby
affecting his retirement income. The Commission deems the appeal timely
and accepts it 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.
An EEOC Administrative Judge (AJ) ruled in favor of the Agency without
a hearing. The AJ determined that Complainant failed to establish a
prima facie case of disparate treatment on the basis of age because
the comparator evidence showed that Complainant was treated similarly
as other rural letter carriers. In particular, the AJ found that some
rural letter carriers who were treated better than Complainant, in that
their routes were not adjusted, included persons who were younger or
older than Complainant. The AJ likewise found that other rural letter
carriers, who were younger or older than Complainant, had been treated
similarly to Complainant in that their routes had also been adjusted.1
The AJ also found that Complainant failed to establish a prima facie
case of discrimination on the basis of reprisal for prior EEO activity
because Complainant’s previous EEO activity occurred two years prior
to the actions at issue in this case.
After a careful review of the record, including consideration of all
statements submitted on appeal, the Commission finds that the AJ’s
decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute and a preponderance of the evidence in
the record does not establish that discrimination occurred.2 See
Petty v. Dep’t of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Therefore, we AFFIRM the Agency’s final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____5/3/11______________
Date
1 On appeal, Complainant maintains that the Agency’s route adjustments
deviated from several applicable personnel policies and practices, which
support an inference of a discriminatory motive. However, the comparative
evidence shows that the Agency consistently applied its readjustment
policy to rural letter carriers of various ages, suggesting that there
was no such age-related motive, even if the Agency had misapplied or
not followed personnel policies. An Agency’s business decision cannot
be found discriminatory simply because it appears that the Agency acted
unwisely, or that the employer’s decision was in error or a misjudgment.
2 In this case, we find that the record was adequately developed for the
AJ to issue a decision without a hearing. In footnote 3 of the AJ’s
decision, the AJ denied Complainant’s motion to compel discovery.
On appeal, Complainant does not argue that the record is inadequately
developed.
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0120093833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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