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.