01971856
10-05-1999
Barbara E. Ornelas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara E. Ornelas v. United States Postal Service
01971856
October 5, 1999
Barbara E. Ornelas, )
Appellant, )
)
v. ) Appeal No. 01971856
) Agency No. 4F-940-1123-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On December 20, 1996, Barbara E. Ornelas (hereinafter referred to
as appellant) filed a timely appeal from the December 4, 1996, final
decision of the United States Postal Service (hereinafter referred to as
the agency) 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, as amended, 29 U.S.C. �621 et seq. The appeal is timely filed
(see 29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC
Order No. 960, as amended. For the reasons that follow, the agency's
decision is AFFIRMED.
The issue presented in this appeal is whether the appellant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of race (Hispanic), sex, age (DOB 4-15-45), and national
origin (Hispanic) when she was allegedly verbally abused by a supervisor
and issued a letter of warning in January-February 1996.<1>
Appellant filed her formal complaint on June 18, 1996. Following an
investigation, she was advised of her right to request a hearing before an
EEOC Administrative Judge or an immediate final agency decision (FAD).
The record shows that she received the notice on September 28, 1996,
and requested a hearing in an envelope postmarked November 4, 1996.
Appellant's request was untimely, and the agency issued its FAD, finding
no discrimination.<2>
Appellant claimed that she was verbally abused during a discussion by a
supervisor (Hispanic, over 40, female) (S1),<3> and subsequently issued a
letter of warning (LOW). S1 denied improper behavior in her discussion
with appellant. As to the LOW, because it contained an incorrect date,
on April 24, 1996, the agency reduced the LOW to an official discussion.
The agency stated that appellant and others received discussions and
disciplinary actions, if appropriate, for unauthorized use of overtime
without prior notification to a supervisor.
In her appeal statement, appellant asserts that the agency ignored some
issues she raised.<4> She also addresses the EEO activity of another
employee, a union official serving as her representative, and refers
to provisions of the collection bargaining agreement, matters which are
not properly before us.
Generally, discrimination claims are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Appellant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The agency offers rebuttal to appellant's inference
of discrimination by articulating a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met its
burden, the complainant bears the ultimate burden to persuade the fact
finder by a preponderance of the evidence that the reasons offered by
the agency were not the true reasons for its actions but rather were
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993). Under the ADEA, the appellant must show that her age was
a determining factor in the agency's decision, that is, considerations of
age made a difference in the agency's selection decision. Hazen Paper
Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role in the
process and a determinative influence on the outcome").
Here, S1 denied yelling at appellant and explained that similar
discussions, or appropriate discipline, were held with other employees for
unauthorized overtime. We find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In response, appellant failed
to demonstrate, nor does the record show, that the agency's reasons
for its actions were pretextual or based on prohibited considerations.
We note that the LOW issued to appellant was reduced to an official
discussion.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
Oct. 5, 1999
DATE Carlton Hadden, Acting Director
1Appellant also alleged discrimination based on reprisal for prior EEO
activity, but the record does not show, and appellant does not assert,
any prior EEO activity.
2Appellant's contention that she received the notice in October 1996 is
not supported by her signed receipt in the record. She does not explain
the relevance of the copy of the envelope cover she submitted in support
of her claim.
3The agency makes much of appellant's identification of the wrong
supervisor; however, the record shows that the proper supervisor was
identified by appellant in the investigation report.
4Appellant expressed discontent with the agency's processing of
an EEO complaint. Such concerns should be addressed pursuant to
EEOC Management Directive 110 (October 22, 1992) (MD-110). When an
appellant expresses dissatisfaction with the processing of his/her
pending complaint, s/he must direct his/her concerns to the agency
officials responsible for the quality of complaint processing, who must
attempt to resolve the dissatisfaction. MD-110, Chapter 4, Section 8.
While the Commission's Office of Federal Operations maintains ultimate
oversight of such matters, with regard to appellant's concerns of bias
or conflict in the investigatory record, appellant has not identified
any procedural irregularity warranting the Commission's intercession
in the processing of her complaint. See Kimek v. USPS, EEOC Request
No. 05970463 (December 14, 1998).