01970444
05-03-1999
Elia I. Gamez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Elia I. Gamez, )
Appellant, )
) Appeal No. 01970444
v. ) Agency No. 1F-941-1054-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal of a final agency decision concerning
her Equal Employment Opportunity (EEO) complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. Appellant alleges that she was
discriminated against on the bases of race (Hispanic), national origin
(El Salvadorian), sex (female), and in reprisal for prior EEO activity
when, in November 1994, and on other unspecified dates in the preceding
two years, she was not hired for a career position. The appeal is
accepted in accordance with EEOC Order No. 960.001.
The record establishes that appellant was employed as a Transitional
Distribution Clerk at the agency's San Francisco, California Processing
and Distribution Center. On October 24, 1994, appellant's name was
submitted with thirty nine names of other applicants on Hiring Worksheet
(No. 94-00023) for the career position of Part Time Flexible Mail
Processor. Ultimately, fourteen of the forty applicants were hired.
Appellant alleges that some of the applicants hired had lower scores
than she did.
The agency stated that applicants were hired based on their rank and
that appellant was ranked fortieth out of forty on the Hiring Worksheet.
The agency also stated that the race and national origin of the individual
applicants was not known to the responding official who was also unaware
of appellant's prior EEO activity. Although appellant was not hired,
the agency noted that she was, in fact, �selected� which meant that
she would be hired as soon as the hiring for career Mail Processor
positions resumed.
On January 26, 1995, appellant filed a formal EEO complaint, alleging
that the agency had discriminated against her as referenced above.
The agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, appellant initially exercised her
right to a hearing before an EEOC Administrative Judge but subsequently
withdrew her hearing request and requested a final agency decision on
the evidence of record. On September 23, 1996, the agency issued its
final decision, finding no discrimination based on race, national origin,
sex or reprisal for prior EEO activity. It is from this decision that
appellant now appeals.
The United States Supreme Court has established a three step analytical
framework for employment discrimination cases in which disparate
treatment is alleged. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981); McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Appellant must initially demonstrate a prima facie
case by establishing, by a preponderance of the evidence, that she was
subjected to adverse employment actions under circumstances, which,
left unexplained, would raise an inference of discriminatory animus.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 580 (1978). Once
appellant establishes a prima facie case, the burden then shifts to the
employer to articulate a legitimate, non-discriminatory reason for its
challenged action. The appellant must then prove, by a preponderance
of the evidence, that the employer's articulated reason was a pretext
for discrimination.
Applying the standards set forth in McDonnell Douglas, we find that
appellant failed to establish a prima facie case of discrimination.
Appellant presented no evidence that other similarly situated employees
not in her protected classes were treated differently. The record
indicates that the two male and one female applicants who received the
same score as appellant, were, like appellant, �selected� but not hired.
Moreover, although six of the fourteen applicants hired had lower
scores than appellant, the record establishes that the six were also
identified as compensable disabled veterans who are, by law, accorded
special preference in hiring and are therefore not similarly situated
to appellant. The remaining eight applicants who were hired had higher
scores than appellant. Furthermore, there is no evidence in the record
to suggest a discriminatory animus on the part of the agency.
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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 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:
May 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations