01973485
03-10-1999
Rita J. Boiani, Appellant, William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas)) Agency.
Rita J. Boiani v. United States Postal Service
01973485
March 10, 1999
Rita J. Boiani, )
Appellant, )
)
) Appeal No. #01973485
) Agency No. 4C-440-1009-96
) Hearing No. 220-96-5270X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas))
Agency. )
)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission ("Commission") from the final decision of the United States
Postal Service ("agency"), concerning her allegation that the agency
violated 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 C.F.R. � 621 et seq.
In her complaint, appellant alleged that the agency discriminated
against her on the bases of race (Caucasian), sex (female), and age
(D.O.B. 5/19/36), when: (1) during the period of August 21, 1995,
through September 14, 1995, she was treated differently with respect to
training and work assignments; and (2) on September 15, 1995, during her
probationary period, she was terminated from her position as Part-Time
Flexible ("PTF") carrier. This appeal is accepted by the Commission in
accordance with EEOC Order No. 960.001.
Following an investigation of this complaint, appellant requested
a hearing before an Equal Employment Opportunity Commission ("EEOC")
administrative judge ("AJ"). A hearing was conducted on November 6 and
27, 1996. On February 11, 1997, the AJ issued a Recommended Decision
(RD) finding no discrimination.
With respect to both issues, the AJ found that appellant failed to
establish a prima facie case of discrimination on the bases of race,
sex, and age. On appeal, appellant contends that she established, a
prima facie cases of discrimination on the alleged bases, irrespective
of the fact that there were no similarly situated employees outside of
her protected classes, who received more favorable treatment by the
agency than she received, and were not terminated. However, the AJ
also found that appellant failed to show that she satisfied the normal
job requirements of her position as they relate to performance.
Assuming that appellant had established a prima facie case of race, sex,
and age discrimination, the AJ found that appellant failed to establish
that the agency's legitimate, non-discriminatory reasons for terminating
her were pretextual. The AJ found that appellant was terminated due to
poor work performance, and failure to complete her route assignment,
specifically Route 70, within the allotted time frame. Appellant argued
that she was improving her time, however, the AJ found that appellant
continued to exceed the time allotted for her route.
Although appellant argued that she was treated different than other
employees with respect to training and work assignments, the AJ found
that appellant failed to provide any explanation as to how her training
and work assignments differed. Also, appellant's supervisor denied the
accusation that she was hostile and rude to appellant because of her
race, sex, and age. The AJ found that appellant failed to provide any
evidence to substantiate this accusation. On March 11, 1997, the agency
issued a final decision, adopting the AJ's finding of no discrimination.
It is from this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision sets forth the relevant facts,
and properly analyzes the appropriate regulations, policies, and laws
applicable to appellant's complaint as a disparate treatment claim.
Therefore, the Commission discerns no basis in which to disturb the AJ's
finding of no discrimination. Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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 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 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations