01970541
10-08-1999
Martha P. Gutierrez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Martha P. Gutierrez v. United States Postal Service
01970541
October 8, 1999
Martha P. Gutierrez, )
Appellant, )
) Appeal No. 01970541
v. ) Agency No. 1E-854-1001-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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 (ADEA) of 1967, as amended,
29 C.F.R. Section 621 et seq. Accordingly, the appeal is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found no discrimination
based on race/national origin (Hispanic), sex (female) and age (DOB
6-17-45) when appellant's temporary employment was terminated and her
supervisor recommended that she not be rehired.<1>
BACKGROUND
Appellant was employed as a temporary/casual employee with the agency
for various periods between December 1, 1989 and September 11, 1995.
Appellant's last employment period began September 19, 1994, and was
not to exceed September 12, 1995. Appellant was terminated effective
September 12, 1995. Her supervisor (Supervisor 1) recommended that she
not be rehired. The record reveals that Supervisor 1's reasons for the
negative recommendation were appellant's poor attendance, poor work habits
and that she used the phone for personal reasons while on the clock.
Supervisor 1 stated that he counseled appellant on several occasions about
her work habits. Supervisor 1 consulted with the second line supervisor
(Supervisor 2) who concurred with his decision. Supervisor 2 stated that
she supervised appellant on occasion and had noted her poor work habits.
Supervisor 1 denied discriminating against appellant, and noted that
he recommended not rehiring three other casual employees for similar
reasons.<2> He further stated that he never spied on appellant from
behind walls, that there are no walls to spy from and that all casual
employees are rotated through assignments so that all employees had
similar work loads.
The agency sent appellant written notice explaining her appeal rights
and right to a hearing. The letter advised that appellant must notify
the District EEO Office in writing within 30 days of her receipt of the
enclosed investigative file. The letter also advised that if appellant's
representative was not an attorney, any request for a hearing must be
signed by the appellant. The record reveals appellant's sister signed
the certified receipt for delivery. Appellant's representative<3> sent
a written request for a hearing 31 days from the date of receipt of the
agency's letter.
In its final decision, the agency stated that appellant's request for
a hearing was untimely, and since appellant's representative was not an
attorney, he could not sign the request for appellant. The agency found
that appellant failed to establish a prima facie case of discrimination
based on race/national origin (Hispanic) or sex (female). The agency
found that assuming arguendo that appellant established a prima facie
case, the supervisor stated legitimate, nondiscriminatory reasons for
his actions.
On appeal, appellant states that the sister who signed for receipt of the
agency's notice failed to give her the letter until the following day.
Appellant did not take notice of the date stamp, but believed the letter
was delivered the day she received it. Appellant further argues that
her representative signed the request on her behalf because she was
working a late shift and involved in an intense domestic complication.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R �1614.604 provides that a document shall
be deemed timely if it is delivered in person or postmarked before
the expiration of the applicable filing period. EEOC Regulation 29
C.F.R. �1614.605(a) provides that at any stage of complaint processing
the complainant shall have the right to be accompanied or represented
by the representative of her choice. However, the complainant shall
at all times be responsible for proceeding with the complaint whether
or not she has a designated representative. 29 C.F.R. �1614.605(e).
The Commission finds that appellant's request for a hearing was untimely
and therefore waived.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimination. If appellant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In
an ADEA case, the ultimate burden remains on appellant to demonstrate,
by a preponderance of the evidence, that age was a determinative factor.
Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether appellant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 11, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., appellant's poor
attendance, poor work habits, and use of the phone for personal calls
while on the clock. Supervisor 1 consulted with Supervisor 2 before
making a recommendation. Supervisor 2 concurred with his decision.
The burden returns to appellant to demonstrate that the agency's reason
was a pretext for discrimination, that is, that the agency was more likely
motivated by discriminatory reasons. Burdine, 450 U.S. at 253. Appellant
provides no evidence in support of her claim that the agency terminated
her or recommended not rehiring her based on her race/national origin,
sex or age. The record reveals that of the three other temporary
employees not recommended for rehire two were Caucasian and one was
male. Appellant fails to prove that she was treated differently than
similarly situated employees based on race/national origin or sex, and
has not proven that the agency's articulated reasons were a pretext for
discrimination based on race/national origin, sex, or age.
CONCLUSION
Based on the foregoing, the Commission AFFIRMS the agency's finding that
the termination of appellant's temporary employment and its recommendation
not to rehire appellant in September 1995, was not the result of unlawful
discrimination. Accordingly, the decision of the agency 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. �1614.604(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. 8, 1999
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 In her complaint, appellant alleged that her supervisor spied on her
from behind walls, assigned her unreasonable work loads and threatened
her with termination.
2 The record reveals that these include employee 1, a Caucasian female
under 40, employee 2, an Hispanic male under 40, and employee 3, a
Caucasian female under 40.
3 Appellant's representative was not an attorney.