01a03661
10-20-2000
Wendy E. Estevis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.W. Region), Agency.
Wendy E. Estevis v. United States Postal Service (S.W. Region)
01A03661
October 20, 2000
.
Wendy E. Estevis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(S.W. Region),
Agency.
Appeal No. 01A03661
Agency No. 1-G-781-0021-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of race (Caucasian), sex (female), color (White),
and national origin (Mexican-American) when on December 21, 1998, she
was terminated.
The record reveals that during the relevant time, complainant was
employed as a Casual Mail Handler at the agency's San Antonio, TX,
Processing and Distribution Center facility. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on April 30, 1999. At the conclusion of the
investigation, complainant was informed of her 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 had not been
discriminated against on any of the alleged bases but rather was
terminated because of poor attendance. On appeal, complainant contends
that the agency did not conduct a fair and impartial investigation
of her complaint and that she did, in fact, submit the required
medical documentation as provided for in agency regulations and the
union agreement regarding sick leave. The agency did not respond to
complainant's contentions on appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the Commission agrees with the agency that complainant
failed to establish a prima facie case of race, color, sex, and national
origin discrimination because similarly situated casual employees outside
of her protected groups were also terminated for poor attendance.
In reaching this conclusion, we note that complainant had at least four
unscheduled absences from October 12 to December 19, 1998. Employees are
required to be regular in attendance as stated in agency regulation ELM
666.8, and agency regulation ELM 365.33 provides that casual employees
may be separated at any time.
In addition, complainant has not presented any evidence from which, if
left unexplained by the agency, a discriminatory inference can be drawn.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). In this
regard, we note that three males and an employee of Anglo-American
origin were also terminated for attendance-related deficiencies, while
the record does not show that non-Caucasian/White casual employees with
attendance records similar to complainant's were retained.
Therefore, after a careful review of the record, including complainant's
contentions on appeal 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
October 20, 2000
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.