Gina Delgadillo, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 14, 2000
01a03635 (E.E.O.C. Jul. 14, 2000)

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.