01a03933
02-06-2001
Hiawatha K. Molina, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Hiawatha K. Molina v. United States Postal Service
01A03933
February 6, 2001
.
Hiawatha K. Molina,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03933
Agency No. 4E-852-0062-99
DECISION
Complainant timely initiated an appeal from the agency's final order
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.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges that she
was discriminated against on the basis of race (Black) when, on January 6,
1999, she was terminated as a PTF carrier during her probationary period.
For the following reasons, the Commission affirms the agency's final
decision.
The record reveals that complainant, a probationary letter carrier at the
agency's Casa Grande, Arizona facility, filed a formal EEO complaint with
the agency on May 22, 1999, alleging that the agency had discriminated
against her as referenced above.
At the conclusion of the investigation, the agency provided complainant
with a copy of the investigative report and notified her of her right
to request a hearing before an EEOC Administrative Judge (AJ) within
thirty days. The record reveals that complainant received this notice
on December 7, 1998. Because complainant requested a hearing by letter
dated January 14, 1999, more than thirty days from the date of notice,
the agency issued a final decision.
The agency found that complainant was not discriminated against
as claimed and that she failed to establish a prima facie case of
discrimination based on race because she did not show that she was
treated less favorably than others outside of her protected class.
The agency noted that non-Black employees were also terminated during
their probationary period. The agency found that, assuming arguendo,
that complainant established a prima facie case, the agency articulated
legitimate, nondiscriminatory reasons for its action, namely that record
evidence showed that complainant was tardy several times. The agency
noted that the employees complainant cited as also being tardy were not
probationary employees.
In her appeal, complainant argues that she contacted numerous attorneys
after an operation in December 1998, before finding one who would
help her. She states that she completed the form requesting a hearing
in the attorney's office and the form was sent from there.
Pursuant to 29 C.F.R. � 1614.108(f)), complainant was granted thirty days
to request a hearing before an EEOC Administrative Judge. The agency
denied complainant's untimely request for a hearing and issued a final
decision finding no discrimination. On appeal, complainant does not
dispute that she received the notice on December 7, 1998, or that her
request for a hearing was dated January 14, 1999, only that she had to
contact several attorneys before finding one to help her. The Commission
finds that complainant's arguments are without merit. Complainant bore
responsibility for returning her request within the allotted time frame.
We also find that complainant fails to submit any statement or evidence
that rebuts the agency's finding of no discrimination.
Thus, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final decision.
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
February 6, 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 be found at the Commission's
website at www.eeoc.gov.