Yoland Andino, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
01a00118 (E.E.O.C. Mar. 30, 2000)

01a00118

03-30-2000

Yoland Andino, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Yoland Andino, )

Complainant, )

) Appeal No. 01A00118

v. ) Agency No. 1F-941-0065-97

) Hearing No. 370-98-2100X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the bases of race (Native American),

sex (Female), religion (Christian), and reprisal (prior EEO activity)

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether complainant has established, by

preponderant evidence, that the agency discriminated against her on the

bases of race, sex, religion, and reprisal when she was terminated on

December 22, 1996.

BACKGROUND

The record reveals that complainant was a casual employment appointee

at the agency's San Francisco Priority Mail Annex. Complainant began

working at the agency on November 27, 1996, as a casual �Christmas

appointment.� While she was at the agency, three supervisors described

complainant's behavior on several occasions as loud, argumentative, and

bossy. On December 22, 1996, complainant became loud and uncooperative

when she was told by a supervisor (Supervisor-1) not to tell other clerks

what to do. That supervisor moved the conversation with complainant to an

office to discuss the situation with another supervisor (Supervisor-2).

During that conversation, complainant allegedly continued to be agitated

and loud to the point that Supervisor-1 and Supervisor-2 requested

that complainant resign. Complainant refused to do so and Supervisor-2

terminated her. Complainant filed a formal EEO complaint with the agency

on May 5, 1997, alleging that the agency had discriminated against her

on the bases of race, sex, religion, and reprisal.

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). The AJ found that there were

no issues of material fact to be decided in this case and notified the

parties of her intent to issue a decision without a hearing. In her

notice, the AJ stated that complainant failed to show how the agency's

action was related to her protected bases. The AJ also noted that the

complainant did not deny the agency's description of events which led to

her termination and concluded that there were no issues of material fact.

The AJ requested that the parties respond to her intent within fifteen

(15) days. The agency responded by stating that it had no objection to

the AJ's decision. Complainant failed to respond to the AJ's notice.

On September 13, 1999, the AJ issued her recommended Findings of Fact

and Conclusions of Law based on the written record.

In her Findings and Conclusions, the AJ determined that complainant failed

to establish a prima facie case of race, sex, religion, and reprisal

discrimination because she failed to demonstrate that there was any causal

connection between the agency's action and complainant's protected bases.

The AJ further noted that the complainant did not challenge the agency's

description of events. Accordingly, the AJ determined that complainant

failed to demonstrate that she was terminated based on her race, sex,

religion, or in reprisal for prior EEO activity.

The agency's FAD implemented the AJ's recommended Findings and

Conclusions.

On appeal, complainant argues that her behavior was not as severe as the

agency alleged and had it been that bad, she would have been terminated

during the first week of her employment. Complainant further reiterates

her claim that the reason she was so loud and argumentative was that

she was provoked by her co-workers.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. The United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of the

non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st

Cir. 1988). In the context of an administrative proceeding under Title

VII, summary judgment is appropriate if, after adequate investigation,

complainant has failed to establish the essential elements of his or

her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173

(3d Cir. 1988). In determining whether to grant summary judgment,

the trier of fact's function is not to weigh the evidence and render a

determination as to the truth of the matter, but only to determine whether

there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

After a careful review of the record, we find the AJ properly determined

that there was no genuine issue of material fact in this case.

Specifically, we find that complainant failed to set forth sufficient

facts showing that there was a genuine issue still in dispute. Moreover,

complainant failed to respond to the AJ's notice of intent to issue

a decision without a hearing and failed to provide in this appeal any

evidence or argument that material issues are in dispute. Therefore,

we concur in the AJ's determination and find that summary judgment was

appropriate in this case.

Based on our careful de novo review of the entire record before us,

the Commission finds that the AJ's recommended findings and conclusions

properly summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We conclude that complainant failed to

establish by preponderant evidence that any of the agency's actions were

in retaliation for complainant's prior EEO activity or were motivated

by discriminatory animus toward complainant's race, sex, or religion.

Accordingly, we discern no basis to disturb the AJ's recommended findings

and conclusions or the agency's adoption of the AJ's decision.

CONCLUSION

Therefore, after a careful review of the record, we AFFIRM the agency's

FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 30, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.