05980815
06-29-2000
Desiree Quintero, Complainant, William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Desiree Quintero v. United States Postal Service
05980815
June 29, 2000
Desiree Quintero, )
Complainant, ) Request No. 05980815
)
) Appeal No. 01960836
)
William J. Henderson, ) Agency No. 4-F-956-1128-94
Postmaster General, )
United States Postal Service, ) Hearing No. 370-95-X2348
(Pacific/Western Region), )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Desiree
Quintero v. United States Postal Service, EEOC Appeal No. 01960836
(April 21, 1998).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
On May 4, 1994, while casing mail, complainant had an altercation with
a co-worker where she verbally insulted the co-worker and he responded
by hurtfully grabbing her buttocks. After she filed her complaint
alleging sexual harassment and the matter was investigated by the
agency, complainant requested a hearing before an EEOC Administrative
Judge ("AJ"). In her recommended decision without a hearing, the AJ
found that the manner in which the co-worker grabbed complainant's
buttock constituted conduct sufficiently severe as to create a hostile
environment. The AJ, however, found that the agency was not liable
for its employee's harassment because it took immediate and appropriate
corrective action as soon as complainant reported the incident, in that
the agency immediately investigated the allegation and disciplined the
co-worker. In its final decision, the agency adopted the AJ's findings.
Complainant thereafter appealed the matter to the Commission.
In our prior decision, we agreed with the AJ's finding that complainant
was sexually harassed, but found that the agency failed to take immediate
and corrective action in the matter. Specifically, we noted that the
record failed to indicate whether complainant was reimbursed for the
leave used as a result of the harassment and whether the agency offered
complainant assurances that in the future, she would not be required
to work alongside the harasser. The agency was ordered to provide
complainant with each of the above-mentioned remedies.
On reconsideration, the agency argues that our prior decision erred as
follows: (1) the record demonstrates that complainant was reimbursed
for the time she missed from work through paid leave and worker's
compensation; (2) the requirement of removing the harassing individual
would require the agency to violate internal policies and possibly
violate Merit System Protection Board ("MSPB") policy; and (3) the prior
decision failed to give deference to the AJ's findings. In response,
complainant states that the agency never provided her any assurances
that if she returned to work she would not be required to work with the
harasser and that since the AJ issued her decision without a hearing,
the correct standard of review was de novo.
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. As to the agency's
assertions, the record does not indicate that the agency reimbursed
or restored complainant's leave used as a result of the harassment.
Further, other than mere conjecture, the agency has not provided any
reasonable explanation as to why removing the harasser from the same
workplace as complainant would cause a burden on the agency's operations
or run afoul of MSPB policy. Finally, we agree with complainant that
when an AJ issues a decision without hearing, the standard of review
on appeal is de novo. See Williams v. United States Postal Service,
EEOC Appeal No. 01A00816 (April 25, 2000). Accordingly, the decision
in EEOC Appeal No. 01960836 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
June 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.