01a53905
09-28-2005
Sandra S. Andrews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra S. Andrews v. United States Postal Service
01A53905
September 28, 2005
.
Sandra S. Andrews,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53905
Agency No. 4C-440-0257-04
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Distribution
Window Clerk at the agency's Minerva Post Office in Minerva, Ohio.
Complainant filed a formal complaint on September 1, 2004, claiming
that she was discriminated against on the bases of age (D.O.B. 5/29/42)
and in reprisal for prior EEO activity when:
(1) on June 26, 2004, and ongoing, she has been denied opportunities
to work overtime; and
(2) on June 30, 2004, she was denied a request for copies of her 2002
case files by the Eastern Area EEO Office. In her formal complaint,
complainant stated that the above
referenced files had been requested in a �Freedom of Information Act
[FOIA] letter that I sent . . . . concerning [two EEO complaints
identified by agency number].�
On September 15, 2004, the agency issued a partial dismissal. Therein,
the agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. The agency accepted claim (1) for
investigation.
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a FAD by the agency. Complainant initially
requested a hearing before an AJ, but later withdrew that request and
requested that the agency issue a FAD.
Claim (1)
The agency found that complainant failed to establish a prima facie
case of disparate treatment. The agency further found that complainant
failed to establish a prima facie case of age and reprisal discrimination.
The agency concluded that although complainant can establish that she had
engaged in prior protected activity and that management may have been
aware of it, complainant failed to establish that the agency subjected
her to any adverse action.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment actions, which were not
persuasively rebutted by complainant. In an affidavit, complainant's
supervisor stated that complainant "was NEVER denied the opportunity to
work overtime [emphasis added]." The Supervisor further stated that
complainant had not informed him of any denied opportunities to work
overtime since June 26, 2004 and ongoing. The Supervisor stated that
since June 26, 2004, complainant had worked overtime. Specifically, the
Supervisor stated that complainant worked full-time overtime assignments
on the following dates: June 23, 2004; July 3, 10, 17, and 31, 2004;
August 7, 14, 21 and 28, 2004; and September 4, 11, 18 and 25, 2004.
The Supervisor stated that since January 1, 2004, complainant worked
a total of 194.13 hours of overtime. The Supervisor stated that the
three identified Part Time Flexible Clerks had a total of 30.15, 28.82
and 25.88 hours of overtime, respectively. The Supervisor stated that
because complainant was the only regular Clerk, there was no overtime
desired list. The Supervisor further stated that the three identified
Part Time Flexible Clerks could not sign the Overtime Desired List.
Furthermore, the Supervisor stated that he was not aware of complainant's
prior protected activity.
The record also contains a copy of Time and Attendance for complainant
for pay periods 2 through 21, Leave Year 2004, which clearly indicates
that complainant had 194.13 hours of overtime. The record further
contains a copy of Time and Attendance for the three identified Part
Time Flexible Clerks. Therein, the three Part Time Flexible Clerks
are listed during the relevant period as having earned 30.15, 28.82 and
25.88 hours of overtime, respectively.
The Commission determines that complainant has not demonstrated that
the agency's articulated reasons for its actions were a pretext for
discrimination.
Accordingly, the agency's final decision finding no discrimination
is AFFIRMED.
Claim (2)
Complainant claimed that she was discriminated against on the bases of
age and in reprisal for prior protected activity when on June 30, 2004,
she was denied a request for copies of her 2002 case files by the Eastern
Area EEO Office. Specifically, complainant claimed that the agency failed
to provide her copies of her files which were requested under FOIA.
In a partial dismissal dated September 15, 2002, the agency dismissed
claim (2) for failure to state a claim, finding that an employee cannot
use the EEO process to lodge a collateral attack on another proceeding;
and that complainant failed to show how she had suffered a personal loss
or harm as a result of the agency's alleged actions.
The EEOC regulation set forth at 29 C.F.R. � 1614.107(a)(1), provides,
in relevant part, that an agency shall dismiss a complaint that fails to
state a claim. The Commission has held that it does not have jurisdiction
over the processing of FOIA requests. Instead, persons having a dispute
regarding such requests should bring any appeals about the processing of
their FOIA requests under the appropriate FOIA regulations. See Gaines
v. Department of the Navy, EEOC Request No. 05970368 (June 12, 1997).
The Commission therefore determines that the agency's decision to dismiss
claim (2) was proper.
Accordingly, the agency's dismissal of claim (2) is AFFIRMED.
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 28, 2005
__________________
Date