01A41339_r
11-29-2004
Rebecca Lopez-Rosende, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rebecca Lopez-Rosende v. United States Postal Service
01A41339
November 29, 2004
.
Rebecca Lopez-Rosende,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41339
Agency No. 4F-920-0237-97
Hearing No. 340-98-3967X
DECISION
Complainant filed an appeal with this Commission on December 10, 2003,
seeking a determination whether the agency has fully complied with its
notice of final action.
In her complaint, complainant identified the following issues:
Was complainant discriminated against on the bases of her disability
and retaliated against for prior EEO activity when her supervisor would
not allow her to throw mail and denied her overtime during the period
of May 27, 1997, through December 1998;
Was complainant discriminated against on the bases of religion and
retaliated against for prior EEO activity when her supervisor told her
she could not pray or talk about Jesus at work during the period of May
27, 1997, through December 1998.
Was complainant discriminated against on the bases of disability and
retaliated against for prior EEO activity when her supervisor reprimanded
and belittled her in front of her co-workers by making her sit on a
chair next to the bathroom and in the break room on several occasions
during the period of May 27, 1997, through December 1998.
Was complainant discriminated against on the bases of disability and
retaliated against for prior EEO activity when complainant's supervisor
denied her request for schedule changes to avoid using sick leave so
she could go to doctor appointments related to her on the job shoulder
injury during the period of July 17, 1997, through August 21, 1997;
Was complainant retaliated against for prior EEO activity when
complainant's supervisor and the postmaster issued her a seven-day
suspension for failure to follow instructions/unacceptable conduct on
July 16, 1997;
Did the agency fail to allow complainant reasonable time to process her
EEO complaint in preparation for the hearing process and/or compensate
complainant for the time she would have otherwise been entitled to if
the agency had granted her request.<1>
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision dated September 30, 2002, finding that complainant
was discriminated against on the bases of disability and reprisal
with regard to issues (1), (2), and (4). With regard to issue (3),
the AJ found that complainant was discriminated against on the basis of
reprisal, but found that complainant failed to establish that she was
discriminated against with regard to disability. With regard to issue
(5), the AJ found that complainant was discriminated against in reprisal
for prior EEO activity but found that she was not discriminated against
with regard to disability. With regard to issue (6), the AJ found that
the agency's denial of official time beyond complainant's normal tour
of duty was unreasonable.
As corrective action, the AJ ordered the following relief:
The agency shall review the ETC records for the time period of May 27,
1997, through November 15, 1997, and determine the amount of equitable
opportunities for overtime that were denied the complainant in accordance
with the findings herein and pay the complainant back pay with interest
for this denial of overtime.
The agency shall provide the complainant with religious accommodations
in the workplace that are not an undue hardship on postal operations.
The agency shall restore the complainant's leave she had to use when she
was denied the requested schedule changes during the period of July 17,
1997 through August 21, 1997. The agency shall treat all future such
requests the same as it does any other employee not in her protected
classes.
The agency shall remove any and all references to the 7-day suspension,
including the LOW, from her personnel records. Since the 7-day suspension
was found to be based on unlawful discrimination, the LOW that resulted
from the reduction of the 7-day suspension through the grievance process
is still tainted with the unlawful stench; hence, it shall be removed
from her personnel record as well.
The agency shall pursue corrective action with the relevant management
officials who made the unlawful discriminatory and reprisal-based
decisions referenced herein. Such corrective action shall include, but
is not limited to, EEO awareness training, especially focusing on hostile
work environments, disability discrimination, religious accommodation,
and reprisal-based actions. To the extent that the agency still has
functional control over those employees responsible for the illegal
actions, the agency shall require these employees to attend a minimum
of eight (8) hours of EEO awareness training.
The agency shall prominently post at the agency's Apple Valley Office,
a notice of finding of discrimination in conformity with Appendix A of
29 C.F.R. Part 1614. The notice shall indicate that it is being posted
pursuant to this Order.
The agency shall restore to the complainant all leave, compensation
and benefits, overtime she would have worked, including applicable
within-grade increases, and cost-of-living increases, with interest,
for those periods of time referenced in this decision.
The agency shall offer the complainant all equitable relief she would
have otherwise been entitled to absent the unlawful discrimination
and retaliation, including equitable opportunities for overtime in the
future based upon her seniority on the OTDL and her job skills, with
due consideration allowed for penalty overtime issues only as applied
to all similarly situated employees.
The agency shall compensate the complainant for non-pecuniary damages
in the amount of $35,000.00, and all verifiable costs associated with
the successful prosecution of this case. . . .
Thereafter, the agency issued a Notice of Final Action on November 20,
2002, fully implementing the AJ's decision and the relief awarded.
In a letter dated October 1, 2003, complainant contacted the agency
alleging that it failed to comply with the corrective actions listed
as numbers (1), (3), (5), (7), and (8) of the agency's decision.
Complainant filed the present appeal on December 10, 2003, regarding
the agency's failure to comply with corrective actions (1), (3), (5),
(7), and (8) of the agency's decision.
Subsequently, the agency issued a final decision dated December 12, 2003,
regarding complainant's claim that it failed to comply with the agency's
decision. With regard to corrective action (1), the agency noted that
Supervisor A determined that complainant was entitled to 32.75 hours of
overtime and stated that this has been forwarded for payment processing.
With regard to corrective action (3), the agency noted that Supervisor A
reviewed complainant's clock rings and found no leave was used during
the relevant time period. With regard to corrective action (5), the
agency stated that eight hours of training was given on June 4, 2003.
With regard to corrective action number (7), the agency stated that
other than overtime, no other loss of leave, compensation or benefits
has been identified. With regard to corrective issue (8), the agency
noted that other than overtime, no other loss of leave, compensation or
benefits has been identified.
The record contains a June 13, 2003 signed statement from Supervisor A
stating that complainant was by-passed for overtime in the amount of 32.75
hours. Additionally, the record contains a Class Roster for June 4, 2003
for class location S.B.P.D.C. This roster does not contain a course title
or list the length of the class. Finally, the record contains a June
16, 2003 signed statement from Supervisor A stating that: (1) religious
accommodations have been made for complainant; (2) no leave was used by
complainant for the period of July 17, 2003, through August 21, 2003;
(3) as of April 30, 2003, the Letter of Warning for conduct was not in
complainant's OPF; and (4) the EEO posting was removed on April 17, 2003.
Upon review, the Commission is unable to determine whether the agency
complied with corrective action (1), as stated in the agency's final
action. Under corrective action (1), the agency was required to review
the ETC records for the time period of May 27, 1997, through November 15,
1997, and determine the amount of equitable opportunities for overtime
that were denied the complainant and pay the complainant back pay
with interest for this denial of overtime. The record reveals that the
agency determined complainant was entitled to payment for 32.75 hours for
the relevant time period. We note that complainant does not challenge
this determination. However, the agency failed to show that payment
of the specified overtime was provided. Therefore, we shall remand the
matter so that the agency may supplement the record with evidence showing
whether it has paid complainant for the specified 32.75 hours of overtime.
With regard to provision (3) of the ordered corrective action, the
Commission finds that complainant has failed to show that the agency
is not in compliance with this provision. According to provision (3),
the agency was to restore complainant's leave used during July 17, 1997,
through August 21, 1997. The agency stated that complainant used no
leave during this period. Complainant does not challenge the agency's
assertion on appeal. Thus, we find that complainant failed to show that
the agency was not in compliance with corrective action (3).
With regard to corrective action (5), the Commission is unable to
determine whether the agency complied with corrective action (5), as
stated in the agency's final action. Pursuant to corrective action (5),
the agency was required to pursue corrective action with the relevant
management officials who discriminated against complainant, including, a
minimum of eight (8) hours of EEO awareness training. Although the agency
stated that the required eight hours of training was conducted on June
4, 2003, and provides a training roster for June 4, 2003, we note that
the roster fails to identify the name of the training course conducted
or the length of that course. Thus, we shall remand the matter so that
the agency may supplement the record with evidence showing whether it has
complied with the relief provided in provision (5) of the ordered relief.
With regard to corrective action (7), the Commission finds that
complainant failed to show that the agency is not in compliance with
this provision. Pursuant to provision (7), the agency was required to
restore to the complainant all leave, compensation and benefits, overtime
she would have worked, including applicable within-grade increases,
and cost-of-living increases, with interest, for those periods of time
referenced in this decision. The agency determined that the only loss
due complainant was the 32.75 hours of overtime. Complainant does not
challenge the agency's assertion or claim that she was due any other
benefits as a result of the discrimination. Thus, we find complainant
failed to show non-compliance with corrective action (7) that is somehow
distinguishable from the alleged non-compliance with corrective action
(1).
Finally, with regard to corrective action (8), the Commission finds that
complainant failed to show that the agency is not in compliance with this
provision. According to provision (8), the agency was required to offer
complainant all equitable relief she would have otherwise been entitled to
absent the unlawful discrimination and retaliation, including equitable
opportunities for overtime in the future based upon her seniority on
the OTDL and her job skills, with due consideration allowed for penalty
overtime issues only as applied to all similarly situated employees.
The agency determined that the only loss identified was the 32.75 hours
of overtime. The agency found no other loss of leave, compensation,
benefits was due complainant. Complainant does not challenge the
agency's assertion or claim that she was due any other benefits as a
result of the discrimination. Thus, we find complainant failed to show
non-compliance with corrective action (8) that is somehow distinguishable
from the alleged non-compliance with corrective action (1).
Accordingly, the agency's final decision regarding corrective action
(1) and (5) is VACATED and the matter is REMANDED for a supplemental
investigation. The agency's final decision regarding corrective action
(3), (7), and (8) is AFFIRMED.
ORDER
The agency shall supplement the record with documentation showing
whether it has complied with provisions (1) and (5) of the corrective
action specified in the agency's final action. Specifically, the agency
shall provide evidence showing complainant was paid for the 32.75 hours
she was denied for the time period of May 27, 1997 through November
15, 1997. Additionally, the agency shall provide evidence indicating
whether it has provided EEO awareness training for eight hours for the
relevant management officials who committed the unlawful discrimination
against complainant. Within 30 days of the date this decision becomes
final, the agency shall issue a decision on whether the agency breached
corrective actions provisions (1) and (5). A copy of the decision must
be submitted to the Compliance Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
November 29, 2004
__________________
Date
1This issue was added after complainant
provided notification to the concerned agency representative.