01983803
01-07-2000
Edward R. Jaramillo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Edward R. Jaramillo v. United States Postal Service
01983803
January 7, 2000
Edward R. Jaramillo, )
Complainant, )
) Appeal No. 01983803
v. ) Agency No. 4E-800-0198-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of national origin (Hispanic),<1> sex (male), age (DOB; 9/27/55)
and in reprisal for prior protected activity 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.<2> Complainant alleges he was discriminated
against when the agency placed him on Emergency Placement without Pay
and issued a Notice of Removal for Unacceptable Conduct/Violation of
Postal Service Regulation on Sexual Harassment. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's Bulk Mail Center
in Denver, Colorado. Believing the agency discriminated against him,
complainant sought EEO counseling and filed a formal complaint on June 8,
1997. At the conclusion of the investigation, when complainant failed to
make a timely request for a hearing before an EEOC Administrative Judge,
the agency issued a final decision from which complainant now appeals.
Complainant did not submit a statement in support of his appeal.
The agency requests that we affirm the FAD.
After a careful review of the record, based on the standards set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases), the Commission finds that complainant failed
to establish a prima facie case of discrimination or retaliation.
An internal agency investigation concluded that complainant's continued
inappropriate behavior towards female employees violated the agency's
conduct violations. Complainant provides no credible evidence that his
conduct was acceptable or that similarly situated employees who engaged
in such conduct were treated more favorably than he was. By engaging
in such behavior, the Commission finds that complainant was not meeting
the legitimate expectations of his job, and we thus decline to infer
a discriminatory or retaliatory motive on the part of the agency in
issuing discipline. Accordingly, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 7, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 In his formal complaint, complainant alleged discrimination on the basis
of race (Hispanic). The Commission considers "Hispanic" to be more properly
categorized as a national origin.
2 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 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.