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).