01981399
05-16-2001
Michael A. Gomez v. United States Postal Service
01981399
May 16, 2001
.
Michael A. Gomez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01981399
Agency No. 1F-953-0006-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of race (Hispanic), national origin (Mexican), sex
(male) and retaliation (prior EEO activity) when: (1) on November 11,
1996, he was issued a Notice of Removal charging him with failure to
perform duties in a safe manner; and (2) on November 22, 1996, he was
placed on emergency suspension.
The record reveals that during the relevant time, complainant was employed
as an Automation Clerk at the agency's Stockton, California facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on February
5, 1997. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614, the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination or reprisal, since complainant
failed to establish that he was treated differently than similarly
situated individuals outside his protected classes. Even assuming,
arguendo, that complainant was able to establish a prima facie case,
the agency determined that complainant did not show that the legitimate,
non-discriminatory reason articulated by the agency for its employment
action was pretext for discrimination or reprisal. Specifically, the
agency noted that complainant's supervisor (S1) credibly testified that
complainant is an �accident repeater� who had six accidents in a six-year
period. He added that just a couple of months prior to the incident at
issue, complainant had received extensive safety training, yet in spite
of this training, he was observed on three different occasions within
one week working in an unsafe manner. In addition, when questioned
regarding his safety violations, complainant refused to respond to S1.
Complainant raises no contentions on appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission finds that assuming complainant did establish a
prima facie case of discrimination and reprisal, he nevertheless, failed
to prove pretext or that the agency's employment action was motivated by
discriminatory or retaliatory motives. In addition, while there is some
reference in the file to witness statements in support of complainant's
argument that there were many others who engaged in similar conduct but
who were not similarly disciplined, the record is devoid of such evidence.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 16, 2001
__________________
Date