01a04170
03-26-2001
Anita Arevalo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Anita Arevalo v. United States Postal Service
01A04170
March 26, 2001
.
Anita Arevalo,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04170
Agency No. 1G-781-0037-98
1G-781-0048-98
Hearing No. 360-99-8524X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaints 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against on the bases of sex (female) and national
origin (Mexican American) when, (1) she learned on March 5, 1998,
that management failed to take appropriate action against a supervisor
(Supervisor) convicted<1> of misdemeanor assault against her; and (2)
on April 28, 1998, she was terminated. For the following reasons,
the Commission affirms the agency's final action.
The record reveals that complainant, a Casual Employee/Mail Processor
at the agency's San Antonio, Texas, Processing and Distribution Center,
filed two formal EEO complaints with the agency alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Finding no material facts in dispute, the AJ issued a decision without
a hearing, finding no discrimination.
On complaint (1) the AJ concluded that complainant failed to establish
a prima facie case of discrimination based on sex and national origin.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees not in her protected classes were treated
differently under similar circumstances, or that if supervisors assaulted
non-Mexican-Americans or males, they were disciplined more harshly than
the Supervisor.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
agency did in fact discipline the Supervisor, that the Supervisor's
manager immediately took action after the September 16, 1997 incident
by interviewing witnesses, removing the Supervisor from her unit and
reassigning her from Tour I to Tour II. On October 27, 1997, the agency
charged the Supervisor with �Improper Conduct - Inappropriate Physical
Contact with a Subordinate Employee� and proposed a reduction in grade
and pay. In December 1997, the agency issued the Supervisor a Letter
of Warning in lieu of a fourteen-day suspension. The AJ noted that,
although complainant was dissatisfied with the level of discipline,
it was not the responsibility of the AJ to substitute her judgment for
that of the agency officials absent any evidence of discrimination.
Regarding complaint (2), the AJ concluded that complainant failed to
establish a prima facie case of discrimination based on sex and national
origin because she failed to show that employees outside of her protected
classes were treated any differently regarding the termination. The AJ
concluded that complainant failed to establish a prima facie case of
discrimination based on reprisal because complainant filed complaint
(1) after she was terminated on April 28, 1998.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for the termination, namely, that complainant had frequent,
unscheduled absences which her supervisor discussed with her, and that,
on April 27, 1998, complainant returned to work after a three day absence
with insufficient medical documentation to substantiate the absence.
Complainant's supervisor allowed complainant to return with a note
from her doctor the following day. Complainant submitted a note from
her doctor stating that she had alopecia, or baldness of the scalp.
The supervisor averred that the note did not indicate that complainant
could not work with the condition, or that because of the condition, she
had been absent from work for three days. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination/retaliation.
The agency's final action implemented the AJ's decision. Complainant
appealed.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws regarding complaint
(1). We note that the agency took immediate action in investigating the
incident, and both the agency and the Service imposed discipline. We find
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
sex and national origin.
Regarding complaint (2), we find that complainant established a prima
facie case of discrimination based on reprisal. Although complainant
filed a formal complaint after she was terminated, the record indicates
that she contacted an EEO counselor on March 18, 1998, one month before
the termination. Therefore, she established a casual connection based on
closeness in time between the protected activity and the adverse action.
We find, however, that the agency articulated legitimate reasons for
the termination which complainant failed to show were a pretext for
discrimination. The record indicates that complainant had twelve
unscheduled absences between January 1, 1998, and April 26, 1998,
which her supervisor discussed with her on three separate occasions.
Complainant failed to provide sufficient medical documentation to explain
her recent three-day absence.
We therefore discern no basis to disturb the AJ's decision. After a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 26, 2001
__________________
Date
1 The record indicates that the incident was investigated by the United
States Postal Inspection Service (Service), and that the Supervisor
was convicted, put on probation and fined $120.00 by the Service.
Nothing in the record indicates that the Supervisor was convicted in a
criminal court.