Martha P. Gutierrez, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency

Equal Employment Opportunity CommissionOct 8, 1999
01970541 (E.E.O.C. Oct. 8, 1999)

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.