Wendy E. Estevis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.W. Region), Agency.

Equal Employment Opportunity CommissionOct 20, 2000
01a03661 (E.E.O.C. Oct. 20, 2000)

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.