01a03635
07-14-2000
Gina Delgadillo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gina Delgadillo v. United States Postal Service
01A03635
July 14, 2000
Gina Delgadillo, )
Complainant, ) Appeal No. 01A03635
) Agency No. 4F-900-0444-99
v. )
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 17, 2000, Gina Delgadillo (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to her complaint of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The final agency decision was dated
February 18, 2000. Accordingly, the appeal is timely, and is accepted
by this Commission in accordance with 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
The issue on appeal is whether complainant proved, by a preponderance of
the evidence, that she was discriminated against on the bases of her race
(Hispanic), and sex (female) when she was harassed and terminated from
her position as a Transitional Carrier.
Complainant filed a formal EEO complaint in September 1999, raising
the above-referenced allegation of discrimination. The agency accepted
complainant's complaint for processing, and conducted an investigation.
The agency then provided complainant with a copy of the investigative
report and notified her of her right to request an administrative hearing
within 30 days. Complainant requested a final agency decision without
a hearing, although her request was submitted after the 30-day period
had expired. Thereafter, the agency issued a final decision finding
that complainant had not been subjected to discrimination as alleged.<2>
It is from this decision that complainant now appeals.
After a careful review of the record, the Commission finds that the
agency correctly determined that complainant was not subjected to race
and sex discrimination. The Commission notes that while the agency
stated, in part, that complainant failed to establish a prima facie case
because she did not show that she was treated differently than similarly
situated employees, complainant must only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. See O'Connor v. Consolidated Coin Caters Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, the agency correctly determined that complainant failed
to show that the agency's stated reason for her termination, that is,
committing a safety violation, was pretextual. Complainant did not deny
that she was driving an agency vehicle without wearing her seat belt
and with the driver's side door open. Further, as noted by the Manager,
complainant received safety training when she was hired by the agency, and
was, therefore, aware of the regulations. Finally, the Commission notes
that although complainant asserted that she was subjected to harassment,
she cited no incidents other than her termination. Accordingly, it is
the decision of the Commission to AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__07-14-00_______ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________ __________________________
Date
1On 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2On appeal, complainant indicated that she was unaware of the procedures
for requesting an administrative hearing, and that her mother, who
received the investigative report and notice of rights at her address
of record, did not provide her with the information for several days.
The Commission finds such rationale to be insufficient for extending
the period for requesting a hearing in this case.