01990462_devincentis
01-31-2001
Betty Devincentis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Betty Devincentis v. United States Postal Service
01990462
January 31, 2001
.
Betty Devincentis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01990462
Agency No. 4A-105-0020-98
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, 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.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that she
was discriminated against on the bases of race (White) and age (60 at
relevant time) when on three consecutive days in October 1997 she was
sent home for falling asleep at work.
The record reveals that during the relevant time, complainant was employed
as a Part-time Flexible Mail Processor at the agency's Westchester, New
York Processing/Distribution facility. Believing herself to be a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on January 12, 1998. At the conclusion of
the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. When complainant failed to respond
within the time period specified in 29 C.F.R. � 1614, the agency issued
a final decision.
In its FAD, the agency concluded that complainant had failed to establish
a prima facie case either of race-based discrimination or age-based
discrimination.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue). the Commission agrees with the agency that complainant
failed to establish a prima facie case of race or age discrimination
because she had failed to identify any similarly situated employees
outside her protected groups who were treated more favorably than she.
Nor did she adduce any other evidence tending to show that the agency
had intentionally discriminated against her.
In reaching this conclusion, we note that the comparative employees
complainant identified who were not sent home after falling asleep
at work were full time, regular employees. This is important because
full-time, regular employees were contractually entitled to 40 hours
of work per week while complainant, as a part-time, flexible employee,
had no such entitlement. For this reason, these employees were not
similarly situated.
Therefore, 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 FAD.
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
January 31, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.