01976665
03-27-2001
June Hironaka, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
June Hironaka v. United States Postal Service
01976665
March 27, 2001
.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
June Hironaka,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01976665
Agency Nos. 4E211793 & 4E890110494
Hearing Nos. 340-95-3590X & 340-95-3906X
DECISION
Complainant timely initiated an appeal from the final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Caucasian),
sex (female), reprisal (prior EEO activity), and age (date of birth:
November 20, 1939), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C.� 2000e et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS in part, and REVERSES in part,
the agency's final decision.
ISSUES PRESENTED
The issues on appeal are whether complainant has proven by a preponderance
of the evidence that she was subjected to discrimination on the
above-cited bases when (1) she was over-scrutinized and supervised;
(2) she was harassed by some of her supervisors; (3) she was not
provided adequate time to process grievances and EEO complaints; (4)
others were allowed to case her route thereby denying her overtime; and
(5) she was denied a route inspection. Additional issues on appeal are
whether complainant was subjected to discrimination on the bases of her
sex and reprisal when (6) she was harassed by her supervisors between
May 4, 1993 and May 13, 1994; (7) her supervisors allowed co-workers
to harass her between August 11, 1993 and April 15, 1994; (8) she was
not allowed time to complete an EEO affidavit on May 21, 1993; (9)
she was assessed exorbitant charges for a Freedom of Information Act
(FOIA) request on June 20, 1993; (10) her awarded route was rescinded
and reposted for bid on December 9, 1993; (11) she was not provided
route inspection forms on April 29, 1994; and (12) the second quarter
safety inspection was scheduled on her vacation.<1>
BACKGROUND
The record reveals that complainant, a City Carrier, PS-05 at the
agency's North Las Vegas, Nevada facility, filed formal EEO complaints
with the agency on September 12, 1993, March 8, 1994, June 17, 1994,
and October 25, 1994, alleging that the agency had discriminated against
her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a
recommended decision of no discrimination.
The AJ divided the issues into categories as follows: disparate
treatment�sex, race and age; sexual/gender harassment; and reprisal and
retaliation. She first concluded that complainant did not establish
prima facie cases of disparate treatment based on sex, race, or age.
On the issue of time to process grievances and EEOs, the AJ noted that
because complainant did not file as many grievances as the male union
steward, she was not similarly situated to him and needed less time
to process grievances and EEOs. On the issue of over-scrutiny of her
telephone usage, the AJ found that complainant used the telephone more
than any other employee and was thus not similarly situated to anyone in
the office. Noting that complainant appeared to argue that she and other
women were yelled at more than men by certain supervisors, the AJ found
that supervisors who yelled, did so at both males and females and that
complainant's confrontational style engendered hostility, provoking
supervisors to yell at her. As to complainant's claim that males
were allowed to case her route and therefore received more overtime,
the AJ found that credible evidence established that uneven overtime
distribution among employees was commonplace, such that complainant could
not establish that employees not of her protected classes were treated
more favorably than she. Finally, the AJ concluded that complainant
provided no evidence of age discrimination, other than her own age,
and thus did not establish a prima facie case of age discrimination.
Turning next to complainant's claims of harassment and hostile
work environment, the AJ focused on sexual harassment and found that
complainant's claims that co-workers called her names and criticized her
did not establish sexual or gender harassment because complainant did
not establish that this behavior was related to her sex. The AJ found
credible the co-workers' testimony that their comments were related to
complainant's failure to work and her performance as a union steward,
not her sex. The AJ also found that complainant could not establish
that many of the remarks she mentioned were even made or that they
were addressed to her. Finally, the AJ found that complainant's claim
that a co-worker solicited complaints about her from customers failed
because she did not establish that the co-worker did anything but give
a complaint card to a customer who asked how to address a misdelivery
problem. The AJ concluded that complainant did not establish that she
was sexually harassed by her co-workers.
The AJ next addressed complainant's assertions of retaliation.
The AJ found complainant was unable to establish a prima facie case of
retaliation concerning any of the events that occurred before September
13, 1994 because she could not establish that they were linked to her
EEO activity. The AJ found that complainant was denied a route inspection
not because of a retaliatory animus, but because she was unfamiliar with
her route. The AJ noted that the charges for complainant's FOIA request
were not exorbitant given the size of the request. As for the awarded
route that was reposted, the AJ stated that this was caused by a senior
woman who complained that the route had been improperly posted, and that
the union supported the reposting. The AJ found that any untimeliness
in complainant's receipt of route inspection forms was not connected to
her EEO activity and that the scheduling of the second quarter safety
inspection on complainant's vacation appeared to be inadvertent.
Lastly, the AJ addressed complainant's claims of retaliation for actions
that took place on and after September 13, 1994. The District Manager
of Sales and Services for the North Las Vegas Post Office (DM) sent
an employee to the North Las Vegas Post Office to monitor complainant
starting on September 13, 1994. This was in response to managers'
reports that one of the reasons for the poor performance of the North
Las Vegas Post Office was complainant's constant filing of grievances,
requests for information and EEOs, which prevented them from focusing
on the agency's mission. DM sent someone to monitor and scrutinize
complainant so that she would do her work like any other carrier.
The AJ found that since complainant's EEO activity was inextricably
entwined with her grievance activity and various investigations, it would
be hard to say that her EEO activity was not part of what motivated DM.
The AJ went on to conclude that DM was motivated by retaliation, as well
as the desire to encourage complainant to complete her route in a timely
manner and to prevent complainant from slowing down work at the station.
The AJ concluded that DM had a mixed motive for assigning an employee
to monitor complainant and that he would have taken the same action in
the absence of her EEO activity.
The AJ found, therefore, that complainant did not establish that the
agency was motivated by either sex, race, or age when managers took
the actions or failed to take the actions of which she complained.
In regard to her reprisal claims, the AJ dismissed most on the ground that
complainant failed to establish a prima facie case, and noted that while
DM was partially motivated by reprisal in monitoring complainant, he would
have taken the same action regardless of complainant's EEO activity.
In an August 1, 1997 FAD, the agency adopted the recommended decision
of the AJ, finding that complainant failed to establish sex, race or age
discrimination and that the agency carried its burden of establishing that
the same actions would have been taken in the absence of complainant's
EEO activity. It is this FAD from which complainant now appeals.
CONTENTIONS ON APPEAL
Complainant raises numerous contentions and takes issue with many of
the AJ's factual findings. The agency asks that its FAD be affirmed.
FINDINGS AND ANALYSIS
When considering an appeal following a hearing before an Administrative
Judge, this Commission reviews legal determinations de novo. Pursuant
to 29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision, for the most part, properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We find, therefore, that while the majority of the AJ's decision and the
agency's FAD adopting that decision, is correct and should be affirmed,
a portion of these decisions must be reversed, due to legal error.
Initially, we note that the AJ's decision in regard to Issue Nos. 3-5
and 8-12 is correct. The agency's decision to adopt the finding of
no discrimination in regard to these issues is therefore affirmed.
We note, however that the AJ failed to analyze certain bases that
complainant clearly raised. For example, in analyzing Issue No. 4,
the AJ discussed sex, race, and age discrimination, while complainant
alleged that her denial of overtime was also based on her prior EEO
activity. In analyzing Issue No. 5, the AJ only discussed retaliation,
while complainant alleged that the denial of route inspections was also
based on her sex, race and age. After a careful review of the record,
however, we find that these and similar mistakes, are harmless in that
complainant did not provide any evidence to establish that the treatment
she faced was based on the protected bases that the AJ failed to address.
In so finding, we note, for example, that testimonial and documentary
evidence establish that numerous employees requested and were denied route
inspections around the same time that complainant's request was denied.
The requests of both Caucasian and Black carriers were denied, as well as
both males and females, those with and without EEO activity, and those
over and under 40. Complainant did not provide sufficient evidence to
establish that her denial of a route inspection, or any other agency
action taken against her, was motivated by discrimination. The finding
of no discrimination with regard to these issues is therefore AFFIRMED.
The legal error was made in the analysis of Issue No. 1. Complainant
claimed that she was over-scrutinized and over-supervised by various
management officials and that this activity took the form of highly
scrutinizing complainant's use of the telephone, repeated route
observations by safety inspectors and, beginning on September 13, 1994,
appointing a supervisor to individually supervise complainant, following
her on her route for a number of days. The AJ did not comment on the
claim involving safety inspectors and addressed the other two incidents
separately.
The AJ's finding that complainant failed to establish that her phone use
was over-scrutinized based on her sex, race, age or prior EEO activity,
was based on testimonial evidence and is a reasonable
one. Moreover, while the AJ failed to directly address the route
inspections issue in her decision, documentary evidence clearly
establishes that mail carriers of both sexes, all ages, many races
and varying degrees of EEO activity were subjected to several route
inspections during 1993 and 1994. Complainant therefore did not
establish that she was treated differently than similarly situated
employees outside her protected classes in this regard. It is in the
analysis of the third incident that the AJ made a legal error.
The AJ found that DM sent a supervisor (S1) to the North Las Vegas
Post Office in response to managers' claims that one of the reasons
for the station's poor performance was complainant's constant filing of
grievances, requests for information and EEOs. DM testified that he sent
S1 to focus on complainant specifically and to monitor and scrutinize
her in any way necessary in order to have her do her work like any
other carrier. The record established that this type of one-on-one
scrutiny/supervision was not a normal occurrence. The AJ concluded
that DM was motivated by retaliation for complainant's EEO activity as
well as her grievance activity, the fact that complainant often sent
copies of her complaints, grievances, and letters regarding unethical
�goings on� at the agency to members of Congress and other government
officials, and complainant's and the facility's abysmal performance in
delivering mail.
The AJ based her finding of retaliatory intent on the testimony of DM,
which she found to be credible. Moreover, testimony from the union
local president, whom DM spoke with on this issue, confirms that DM was
attempting to correct what he felt to be complainant's poor performance,
by curtailing her other activities�i.e., information requests, grievances
and EEO activity. We therefore find the AJ's factual finding of
retaliatory motivation to be supported by substantial evidence.
The AJ went on to find that because DM was also motivated by other things,
such as complainant's poor performance, there was a �mixed motive� for
assigning S1 to monitor complainant and that the agency �carried its
burden to establish that the same action would have been taken in the
absence of any EEO activity.� Although it is not completely clear, it
appears that the AJ then recommended that a finding of no discrimination
be made. It is clear from Commission guidance and precedent, however,
that where there is a finding of discriminatory motivation, additional
proof of a legitimate motive does not disprove the discriminatory motive.
See Revised Enforcement Guidance on Recent Developments in Disparate
Treatment Theory, EEOC Notice No. 915.002 at 16 (July 14, 1992).
The finding that DM was also motivated by non-discriminatory concerns
will affect the relief that complainant is due, but it does not lead
to a finding of no discrimination. Therefore, we find that complainant
has established that DM's decision to have S1 scrutinize and supervise
complainant in a way unheard of by any employee at the facility (and,
in fact, allegedly only used by DM once before, more than 7 years ago in
a facility in a different state) was partially motivated by retaliatory
animus.
The AJ's finding that the decision to have S1 scrutinize complainant was
motivated by non-retaliatory reasons as well--including complainant's
non-EEO grievance activity and her habit of informing individuals outside
the agency of allegedly unethical behavior, not necessarily having to
do with the EEO process--is also entitled to the substantial evidence
standard of review. The record supports this finding, as DM testified
to this, as did the local union president. Accordingly, it is the case
that the agency was only partially motivated by retaliatory animus in
taking the action in question.
Therefore, the agency's finding of no discrimination in regard to
complainant's claim of over-scrutiny is REVERSED in part, since the
complainant has established by a preponderance of the evidence that S1's
over-scrutiny was partially motivated by retaliatory animus.
Accordingly, the finding of no discrimination in regard to Issue Nos. 3-5
and 8-12 is AFFIRMED. The finding of no discrimination in regard to Issue
No. 1 is REVERSED as it relates to S1's over-scrutiny, and AFFIRMED as
it relates to the other incidents raised by complainant.
Harassment
Turning to complainant's harassment claim, we note that when analyzing
this claim, the AJ focused solely on sexual harassment, while the record
clearly indicates that complainant claimed harassment on the bases
of reprisal and national origin as well. Moreover, the AJ failed to
address the majority of incidents claimed by complainant to be harassing.
After a careful review of the hearing transcript and documentary evidence
in the record, however, we find that complainant failed to establish
that she was subjected to harassment
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of her race, color, gender, religion, national
origin or retaliation. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc. at
3 and 6, EEOC Notice No. 915.002 (March 8, 1994); Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Complainant's submissions make clear that she claimed reprisal and
sex-based harassment, as well as sexual harassment and, in a limited
sense, national origin harassment. This claim of harassment is best
divided into two types of incidents. Complainant claimed that her
supervisors harassed her when: (1) she was questioned in the parking lot
on May 4, 1993; (2) she was questioned about her telephone usage and
required to ask permission to use the phone on May 22, 1993; (3) she was
called a �tenacious bulldog;� (4) she was called to a supervisor's office
over the loudspeaker on January 29, 1994 where the supervisor yelled and
screamed at her; (5) a supervisor asked her how an employee's EEO was
going on March 17, 1994; (6) she was called at home regarding her work
schedule on March 25, 1994; (7) supervisor's observed her on her route
seven times in two months which is excessive and did not provide a street
observation form on March 29, 1994; (8) a supervisor told her she was
�hard to deal with� and offered her a 204-B Acting Supervisor position
on April 5, 1994; (9) she was accused of talking with another employee
in the parking lot for 25 minutes on April 6, 1994; (10) a supervisor
threatened to �X-out� her route and used foul language on May 5, 1994;
(11) a supervisor told a transitional employee that she/he could have a
career appointment if complainant transferred out or quit on May 13, 1994;
and (12) a supervisor used the term �Jap� during a stand-up meeting.<2>
Also within this set of incidents are all of the issues addressed above
in the disparate treatment section.
The second set of incidents includes complainant's claim that management
allowed co-workers to harass her as follows: (1) placing a derogatory
letter on carrier cases on August 11, 1993; (2) calling her a �fat,
racist pig� on November 5 or 6, 1993; (3) talking about her on April 2,
1994; and (4) partially filling out a Consumer Services Card and asking
a carrier to deliver it on her route on April 15, 1994.
As an initial matter, we note that even assuming all the incidents
happened as described by complainant, there is no evidence to indicate
that the incidents were motivated by her sex or related to her sex
in anyway. Moreover, the only incident which complainant offers in
support of her national origin harassment claim is one comment made
by a supervisor who referred to a non-postal employee as a �Jap.�
While the record establishes that this comment was made and while it
is objectively offensive, it is not sufficient, standing alone, to
result in an environment that a reasonable person would find hostile.
The remark was made one time at a large meeting and not in any way
directed toward complainant. Complainant offers no other evidence of
the existence of an environment hostile to those of Japanese descent,
or to those, like herself, married to someone of Japanese descent.
We therefore find that she has not established sexual harassment,
sex-based harassment or national origin harassment.
Turning to complainant's claim of retaliatory harassment, before
determining if the incidents described by complainant amount to severe
or pervasive conduct, we must review the record in order to determine
whether complainant's or management's description of these events is
supported by the weight of the evidence.
After a careful review of the record, we find that the agency presented
a credible account regarding the majority of the incidents raised
by complainant. For example, although complainant contended that a
coworker partially filled out a Consumer Services Card and gave it to a
customer on complainant's route, the record establishes that this card
was given to a customer who had complained about misdelivery of mail.
Complainant offered no evidence to indicate that the coworker's behavior
in this situation was improper. Moreover, the AJ made several findings of
fact in regard to the allegedly harassing incidents, finding, for example,
that complainant's allegation that she was yelled at by a supervisor on
January 29, 1994 was not credible and that there was no evidence that
the�fat racist pig� comment was made in reference to complainant. These
findings of fact were based on testimonial evidence and are reasonable.
We do find credible, however, complainant's explanations involving
the tape recorder conversation, the �tenacious bulldog� comment, the
�hard to deal with� comment, and the unfavorable comments (other than
the �fat racist pig� comment). In addition, the over scrutiny found
to be partially motivated by retaliatory animus in the above disparate
treatment discussion, also supports complainant's harassment claim.
These incidents occurred between May 1993 and September 1994.
The question now becomes whether those incidents described by
complainant and accepted as true amount to retaliatory harassment.
As noted above, harassment will be found if the discriminatory conduct
is so severe or pervasive that it created a hostile work environment.
An abusive work environment exists �[w]hen the workplace is permeated
with �discriminatory intimidation, ridicule, and insult' that is
�sufficiently severe or pervasive to alter the conditions of the victim's
employment...'� Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Whether a hostile environment exists can be determined only by
looking at all the circumstances of the case, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance. Id. at 31.
Finally, in determining whether or not a hostile work environment exists,
our regulations require that �...the challenged conduct must not only
be sufficiently severe or pervasive objectively to offend a reasonable
person, it also must be subjectively perceived as abusive by the charging
party.� Enforcement Guidance on Harris v. Forklift Systems, Inc. at 7,
EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, while complainant clearly felt herself to be
harassed on a daily basis and attributed numerous daily incidents to
the discriminatory animus of her supervisors, we have not found enough
discriminatory conduct to conclude that a hostile environment existed.
Instead, we find that a few unfavorable or inappropriate remarks were
made about complainant by supervisors and coworkers alike and that on
a certain occasion, complainant was over-scrutinized by a supervisor.
While this certainly did not result in a pleasant working environment,
these incidents are more appropriately viewed as isolated occurrences
then severe or pervasive conduct. See Walker v. Ford Motor Company,
684 F.2d 1355, 1358-9 (11th Cir. 1982); Johnson v. Bunny Bread Co.,
646 F.2d 1250, 1257 (8th Cir. 1981).
Accordingly, complainant has failed to establish that she was subjected
to harassment on any of the alleged bases.
Remedies
Complainant has made a claim for compensatory damages. In that the
agency established that it would have taken the same action even absent
the unlawful discrimination, the complainant is not entitled to personal
relief, i.e., damages, reinstatement, hiring, promotion, or back pay,
but may be entitled to declaratory relief, injunctive relief, attorney's
fees and costs. See Walker v. Social Security Administration, EEOC
Request No. 05980504 (April 8, 1999). Accordingly, we order the relief
set forth below.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) The agency is directed to conduct sensitivity training for DM,
S1 and any other management official involved in the decision to have
S1 scrutinize complainant. The agency shall address these managers'
responsibilities with respect to Federal equal employment opportunity
law, especially with regard to the protection from retaliation for
participation in the EEO process.
(2) The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation that the
corrective action has been implemented.
(3) Complainant shall be awarded attorney's fees, if appropriate, as
set forth below.
(4) The agency shall post copies of the attached notice, as described
below.
POSTING ORDER (G0900)
The agency is ordered to post at its North Las Vegas facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 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
March 27, 2001
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. has occurred at the United States Postal Service,
North Las Vegas, Nevada facility (hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated Title VII when it retaliated
against an employee for prior EEO activity by subjecting her to
improper scrutiny. Because the agency established that it was
also motivated by nondiscriminatory concerns in taking this action,
the agency was ordered to: (1) conduct sensitivity training for the
management officials involved in the decision to improperly scrutinize
the employee's activity; (2) award reasonable attorney's fees, if
applicable; and (3) post this notice.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 These issues stem from several different complaints and requests for
counseling. While the Administrative Judge noted that two complaints had
been consolidated for hearing, the record indicates that this hearing
stemmed from four complaints. Moreover, the file contains numerous
written requests for counseling which describe various allegedly
discriminatory incidents, some of which are repeated more than once.
Because the Administrative Judge stated at the hearing that these twelve
claims were at issue without objection from either party, we limit this
decision to these issues.
2 Complainant appears to have be arguing that because she is married
to a person of Japanese descent, this comment resulted in harassment
based on national origin.