Kay D. Gonzalez, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionMar 28, 2000
01972696 (E.E.O.C. Mar. 28, 2000)

01972696

03-28-2000

Kay D. Gonzalez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Kay D. Gonzalez v. United States Postal Service

01972696

March 28, 2000

Kay D. Gonzalez, )

Complainant, )

) Appeal No. 01972696

v. ) Agency No. 4-G-780-1208-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of sex (female) and reprisal (prior EEO activity) in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq.<1> Complainant alleges she was discriminated against when,

during the week of June 17-24, 1994, the Senior Operations Analyst (SOA)

searched her desk and stole her personal property. The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the agency's decision is AFFIRMED.

The record reveals that complainant was employed as an EAS-16 Customer

Service Analyst at the agency's San Antonio District Office when

the alleged acts of discrimination occurred. Complainant asserts

she overheard the SOA make a sexual comment about a female employee.

On February 14, 1995, complainant became aware that the SOA testified

at a Merit Systems Protection Board hearing that while complainant was

on annual leave in June of 1994, he searched her desk while looking

for Delivery Point Sequence forms and found items which established that

complainant would be a witness in an action against him. In response, the

SOA stated that he had taken the items as alleged, but had no knowledge

of complainant's prior EEO activity at the time and that complainant's

sex had had nothing to do with his actions. The SOA further stated

that the District Manager (DM) instructed him to give him the items for

safekeeping, and while the DM did not examine the items, he was also

not aware that the items were found in complainant's desk.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on June 5, 1995. At the

conclusion of the investigation, complainant was informed of her right

to request a hearing before an Equal Employment Opportunity Commission

(EEOC) Administrative Judge, or request a final decision by the agency.

After complainant failed to respond within the appropriate time frame,

the agency issued its FAD.

The FAD found that complainant failed to establish a prima facie

case of sex discrimination because she presented no evidence that

similarly situated male employees were treated differently under

similar circumstances. The FAD further found that complainant failed

to establish a prima facie case of reprisal, as although complainant had

prior EEO activity, she failed to demonstrate that management was aware

of this activity when the adverse action took place. The FAD further

found that complainant failed to demonstrate that there was a causal

connection between her prior EEO activity and the actions of the SOA.

The FAD also found that had complainant established a prima facie case

of discrimination and/or retaliation, the agency articulated legitimate,

nondiscriminatory reasons for its actions and these reasons were not

pretextual. Complainant has made no new arguments on appeal.

After a careful review of the record, based on McDonnell Douglas

v. Green, 411 U.S. 792 (1973), 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 sex discrimination or retaliation, as there is no evidence

in the record that similarly situated males were treated differently

under similar circumstances or that the SOA was aware of complainant's

prior EEO activity when he searched her desk and took her property.

The Commission finds that complainant has failed to meet her burden of

demonstrating by a preponderance of the evidence that the SOA's actions

were ultimately motivated by discriminatory animus. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993). We thus discern no basis to

disturb the FAD's findings of no discrimination which were based on a

detailed assessment of the record. Therefore, after a careful review

of the record and arguments and evidence not specifically addressed in

this decision, 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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 the 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 the 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 the 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:

March 28, 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:

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 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.