Ixtla Ccihuatl, Complainant,v.Carlos M. Ramirez, Commissioner, International Boundary & Water Commission, Agency.

Equal Employment Opportunity CommissionFeb 23, 2004
01A31765 (E.E.O.C. Feb. 23, 2004)

01A31765

02-23-2004

Ixtla Ccihuatl, Complainant, v. Carlos M. Ramirez, Commissioner, International Boundary & Water Commission, Agency.


Ixtla Ccihuatl v. International Boundary and Water Commission

01A31765

February 23, 2004

.

Ixtla Ccihuatl,

Complainant,

v.

Carlos M. Ramirez,

Commissioner,

International Boundary & Water Commission,

Agency.

Appeal No. 01A31765

Agency Nos. 02-09; 00-11; 02-10

Hearing No. 360-A2-8697X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant alleged that the agency harassed her and discriminated against

her, on the bases of her race/national origin (Hispanic/Mestiza), sex,

and in reprisal for prior EEO activity, in violation of Title VII of

the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq., and on the basis of her age (D.O.B. 4/28/50), in violation of

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq., when:

(1) she was accused of falsifying time sheets;

she requested and was denied training in non-clerical positions;

she was not afforded the consideration for promotion that the agency

extended to male coworkers;

she received disciplinary letters on a regular basis while similarly

situated coworkers were not given such disciplinary letters;

she was subjected to verbal attacks and abuse on the job from management

under the guise of safety reviews;

unspecified events were orchestrated by management between February

and March 2000 which adversely affected her health;

on or about March 8, 2000, she was charged with AWOL and subsequently

suspended;

management refused to provide her with information needed to perform

time and attendance duties, and once when she questioned management

about a timecard, she was forced to remain in the manager's office

against her will and was verbally attacked and threatened;

management classified her position at the GS-4 level while the position

of a male coworker in the same series and who performed fewer duties

than complainant was classified at a higher grade;<1> and

on or about July 19, 2002, complainant received a letter of reprimand for

derogatory and unprofessional statements and inappropriate language used

in communications to coworkers, employees, supervisors, or the public.<2>

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the final agency order

because the Administrative Judge's ultimate finding, that unlawful

employment discrimination on any of the alleged bases, was not proven

by a preponderance of the evidence, is supported by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

February 23, 2004

__________________

Date

1 Complainant additionally alleged a violation of the Equal Pay Act of

1963, as amended, 29 U.S.C. � 206(d) et seq., as to issue (9).

2 Complainant did not initially raise issue (10) in her formal complaint.

Pursuant to complainant's subsequent request, however, the Administrative

Judge ordered an amendment of the complaint to include issue (10)

at the hearing. Complainant contends that she did not receive �due

process� as to this issue. To the contrary, however, we find that

the Administrative Judge included this reprisal claim when he defined

the issues at the beginning of the hearing. Further, in his decision,

the AJ addressed the issue, and found that complainant failed to prove

retaliation. We find that the record contains sufficient evidence,

including the July 19, 2002 letter of reprimand itself, for a decision

on the merits to be reached. Moreover, complainant had ample opportunity

at the hearing to present evidence relevant to issue (10).