01a00196
05-11-2000
Silvia Valdez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Silvia Valdez, )
Complainant, )
) Appeal No. 01A00196
v. ) Agency Nos. 4F-945-1262-96
) 4F-945-0103-97
William J. Henderson, ) 4F-945-0050-97
Postmaster General, ) Hearing Nos. 370-97-X2601
United States Postal Service, ) 370-97-X2802
Agency. ) 370-98-X2685
____________________________________)
DECISION
Complainant timely initiated an appeal from two agency final decisions
(FADs), both dated September 9, 1999, concerning her three equal
employment opportunity (EEO) complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the agency's final decisions are AFFIRMED.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as distribution clerk at the Benicia Post Office in Benicia, California.
Believing she was the victim of retaliation and discrimination,
complainant filed formal EEO complaints with the agency on December 9,
1996 and February 3, 1997. In agency case no. 4F-945-1262-96, complainant
claims that she was retaliated against based on prior EEO activity and
discriminated against based on race (Hispanic),
national origin (Hispanic), sex (female), and age (D.O.B. 7/15/51) when:
(1) she was denied overtime on July 27, 1996, and told by the Postmaster
not to call him at home unless it was an emergency;
(2) she was subjected to a hostile work environment;
(3) the agency refused to pay her money to which she believed she was
entitled for time during which she was deemed AWOL;
(4) the Postmaster told her on July 30, 1996, that he was aggravated by
her calling him at home; and
(5) she was issued a seven-day suspension without any prior disciplinary
record.
In agency case no. 4F-945-0050-97,<2> complainant alleges that she was
retaliated against based on prior EEO activity and discriminated against
based on sex (female), race (Hispanic), national origin (Mexican), age
(D.O.B. 7/15/51), and disability (shoulder tendinitis) when:
(6) she was denied overtime;
(7) she was denied overtime on July 27, 1996;
(8) she discovered on July 30, 1996, that other employees were aware
she was being refused overtime;
(9) the agency failed to pay wages to which complainant believed she
was entitled for the January, 1996 pay period;
(10) on July 30, 1996, supervisors refused to provide complainant with
a copy of
her pay stub for the January, 1996, pay period;
(11) the Postmaster admonished her for calling him at home about overtime
assignments, and instructed her to call him only in case of emergency;
(12) her supervisor failed to take action in response to her complaints
of a hostile work environment; and
(13) on October 18, 1996, her supervisor yelled at her for returning
late from a break.
In agency case no. 4F-945-0103-97, complainant alleges that she was
retaliated against based on prior EEO activity and discriminated against
based on race (Hispanic), national origin (Hispanic), sex (female),
and age (D.O.B. 7/15/51) when:
(14) on January 9 and 10, 1997, she was subjected to harassment, including
rude, demeaning treatment by supervisors and managers, and being escorted
from the facility by the police, whom her supervisor called rather than
issue her a written notice to leave the premises.
At the conclusion of the investigations, complainant was provided copies
of the investigative reports, and she requested a hearing before an EEOC
Administrative Judge (AJ) on each complaint. The three complaints were
consolidated for a hearing.
On May 14, 1999, complainant's counsel filed a pre-hearing motion with the
AJ, styled as a "Motion in Limine To Exclude Evidence and Testimony and
for Sanctions Because Agency Failed to Respond to Discovery and Orders
of the Commission." In the motion, complainant identified numerous
documents which the agency allegedly failed to include in the Records of
Investigation (ROIs), or to produce in response to requests for documents
propounded by complainant. As relief, the complainant sought: (1) to
bar the agency from offering testimonial or documentary evidence at the
hearing which exceeded the scope of those affidavits and documents which
the agency had actually produced; and (2) to draw adverse inferences in
favor of complainant with respect to those documents which the agency
allegedly withheld. The agency failed to respond to the motion.
By order entered June 30, 1999, the AJ denied the motion, but ruled
that the agency was precluded from introducing as hearing exhibits any
documents not produced by one week prior to the hearing date.
At the hearing on July 12, 1999, when called upon to make her
opening statement, complainant's counsel did not address the merits of
complainant's claims, but instead stated the AJ had improperly denied her
motion in limine because there were documents solely within the agency's
control which the agency had failed to produce, thereby prejudicing
complainant's ability to prove her claims. Complainant's counsel further
stated that immediately prior to commencing the hearing, the AJ had
ruled in an off-the-record conference that complainant would not be
permitted to question witnesses regarding allegedly missing discovery.
Hearing Transcript (HT) at 7. Complainant's counsel offered a proffer
that the questions she would have asked witnesses, upon directing
their attention to complainant's documents and discovery requests,
were as follows: (1) whether the witness had had the opportunity to
see complainant's documents and discovery requests prior to the hearing;
(2) what did the witness do to comply with the discovery requests; (3)
was the witness given any instructions about the requests, and if so,
by whom; and (4) (if the witness was not given the requests before) upon
reviewing the requests now, does the witness have any of the documents
or any of the information requested, including any personal notes or
"day-timer" notes? HT at 7-9. Following the agency's opening statement,
complainant's counsel advised the AJ that because the agency had indicated
it would not stipulate that complainant had established a prima facie case
of retaliation and discrimination, complainant was going to "withdraw
our request for a hearing and ask for a final agency decision for court."
HT at 12.<3> Complainant's counsel explained to the AJ that the reason
for the withdrawal was the inadequacy of the ROIs, which did not contain
allegedly relevant documents such as meeting notes from 1994 forward
addressing working conditions in complainant's office. At complainant's
counsel's request, complainant then took the witness stand and testified
that she understood she was waiving her right to a hearing. The AJ then
stated that she wished "to clarify you are withdrawing without prejudice,
so you can � if you want to � if you change your mind . . . as we walk
out the door and you want to continue with the hearing at some point,
I'd be willing to entertain that, unless you have definitely decided
that you want to just have a final agency decision." HT at 16. However,
in response, complainant's counsel stated in part:
Part of my appeal will be the denial of discovery and how it impacts
the way the hearing is conducted . . . this request for a final agency
decision is the only interim appeal process I have. We are withdrawing
because . . . we can't go forward with the file[] the way it is.
HT at 17. Complainant's counsel added "you understand that it is my intent
to get the Commission to order this case remanded for proper processing."
HT at 19. Complainant did not seek at any time thereafter to have her
request for hearing reinstated.
By two FADs, both dated September 9, 1999 (FAD #1 and FAD #2), the agency
found no discrimination with respect to each of complainant's claims.
On appeal, complainant contends that the AJ erred in not compelling
the agency to produce the allegedly missing documents and interrogatory
answers identified in complainant's motion in limine, or alternatively
granting the adverse inferences requested in the motion. Complainant also
contends that the FADs erred in finding no discrimination.
ANALYSIS
Discovery and Evidentiary Rulings
As noted above, complainant's motion in limine did not request that the
agency be compelled to produce the referenced documents. Rather, as
plainly stated in the motion, complainant sought to preclude introduction
of documents not previously produced, or testimony based on same, and to
obtain an adverse inference based on the issues to which the unproduced
documents related. Moreover, in complainant's appellate brief, she
again specifies that the "motion sought to prevent the agency from
benefitting from its failure to produce adequate information and sought
adverse inferences to fill in the gaps of the investigation created by
the agency's withholding of information." Complainant's Brief at 3.
Accordingly, we do not find that the AJ erred in failing to compel the
agency to produce the identified documents. It was within the AJ's
discretion whether or not to grant the pre-hearing adverse inferences
on material issues which complainant sought. Had complainant proceeded
with the hearing, complainant could have argued based on whatever missing
evidence there was that the requested adverse inferences were appropriate,
and the AJ would have been able to consider the matter on the full record
following the hearing before rendering a decision.
Similarly, with respect to the AJ's ruling on cross-examination of
witnesses about their failure to produce documents in response to
complainant's discovery requests, complainant could have noted her
objection on the record, together with a proffer of the questions
which she would have asked if permitted, and proceeded with the hearing.
To the extent complainant contends the agency erred in failing to include
all of complainant's witness statements and documents in the ROIs, and
in failing to obtain statements from some of the witnesses identified
by complainant during the EEO investigation, we note that complainant
was not precluded from following appropriate procedures to introduce
these documents as her own hearing exhibits or to call the relevant
witnesses at the hearing.<4> Regarding any alleged omissions in the
ROIs or the agency's theory of the case as presented at the hearing,
complainant would have remained free to present whatever argument she
deemed appropriate as to the weight of the evidence based on all exhibits,
not merely the ROIs. On appeal, the Commission would still have been
able to review the record for any alleged error by the AJ, and remanded
for a supplemental hearing if deemed necessary. We further note that
complainant has obtained statements from the witnesses in question, and
introduced them into the record before withdrawing her hearing request.
Complainant cannot evade the prohibition on interlocutory appeals
from AJ discovery rulings by seeking to withdraw her hearing request
in order to obtain appellate review of a FAD only for purposes of
obtaining a reversal of the discovery rulings and remand for a hearing.
Complainant has waived her right to a hearing, and we now review the
FADs on the merits of complainant's claims.
Disparate Treatment and Harassment
Although FAD #1 analyzed several of the incidents at issue as raising
a hostile work environment harassment claim, the remainder of both
FADs erroneously analyzed each alleged discriminatory or retaliatory
incident as a distinct claim of disparate treatment, rather than also
viewing all of the referenced incidents cumulatively to determine if they
constitute harassment based on a hostile work environment as complainant
contends.<5> Inasmuch as the agency's error in this regard was addressed
in our prior decision on these complaints, see Valdez v. United States
Postal Service, EEOC Appeal No. 01973742 (February 6, 1998), and not
corrected on remand, the agency is urged to review with its EEO personnel
how to avoid fragmentation of claims. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at 5-5 - 5-6
(November 9, 1999).
1. Overtime
As to incidents (1), (6), and (7) referenced above (denial of request
to work overtime), FAD #1 concluded that complainant was not on the
overtime desired list and was not needed for overtime work. On appeal,
complainant contends that the agency failed to produce, either as part
of the ROIs or in response to discovery requests, the overtime-desired
list (ODL) covering July 27-30, 1996. While complainant concedes in her
investigative affidavit that she did not sign up for the ODL covering
July 27, she contends that the list is an important piece of evidence
which would show that many of the employees who were permitted to work
overtime on that day were also not on the ODL. The agency's proffered
legitimate non-discriminatory reason for denying complainant overtime
is that awarding overtime to an employee who was not on the ODL would
have required approving a different status for employees who were on the
ODL, pursuant to certain collective bargaining agreement provisions.<6>
Complainant contends that this is pretextual, as evidenced by wage records
indicating that numerous employees were paid for overtime work during the
week in question, and complainant surmises that they could not all have
been on the ODL since there were only several names on the ODL for the
first and fourth quarters of that year. Complainant therefore contends
that the agency's failure to produce the overtime list applying to July
27, and documents indicating which employees did work overtime during
the week of July 27, warrants an adverse inference of discrimination
or retaliation.
Notwithstanding the absence of the relevant ODL list in the record,
we conclude that the complainant has not established that the
proffered reason for denial of her overtime request was a pretext for
retaliation or discrimination. In reaching this conclusion, we note
that in complainant's own affidavit, she attests that the supervisor in
question initially told her that since she had placed her name on an ODL
at the beginning of the quarter, she could have overtime even though
she was not on the most recent ODL. She further asserts that he then
came back to her and said that she could not have overtime. This is
consistent with the supervisor's version of events. According to the
supervisor, he initially told complainant she could have overtime, but
after consulting with the union representative, the supervisor advised
her, with the union representative present, that granting complainant
overtime in these circumstances would in their view raise a potential
violation of the collective bargaining agreement. Complainant does not
contend that the union representative was motivated by discriminatory
or retaliatory animus, and does not dispute her supervisor's assertion
regarding the union representative's interpretation of the referenced
collective bargaining agreement provision.<7>
2. Absence without leave
With respect to incident (3), FAD #1 concluded that complainant was
absent without leave (AWOL) when she left without permission on July
30, 1996, and did not provide medical documentation to substantiate
use of sick leave for her continued absence through August 3, 1996.
With respect to incident (5), FAD #1 concluded that complainant was
legitimately issued a seven-day suspension for (a) failure to discharge
duties on July 30, 1996, when she ended her tour without permission, (b)
failure to follow instructions on July 30, 1996 when she was instructed
to return to work and instead clocked out and left the facility, and
(c) being AWOL, when complainant left the facility without the knowledge
or permission of a supervisor. On appeal, complainant cites to hearing
exhibit #26, which she contends is sufficient medical documentation to
warrant approval of sick leave for this period. However, exhibit #26
is a "visit verification" issued by Kaiser Permanente which states that
complainant had a medical appointment on July 31, 1996, and could return
to her full duties with no restrictions on August 1, 1996, and therefore
does not provide medical justification for complainant's absence from
July 30 through August 3.
3. Telephone calls to Postmaster
With respect to incidents (1), (4) and (11), FAD #1 concluded that
the Postmaster properly asked complainant not to call him at home
about non-emergency matters. Although complainant's counsel argues
on appeal that the denial of the overtime she requested constituted an
emergency which warranted calling the Postmaster at home, we disagree.
While counsel contends that the improper denial of overtime could never
be remedied, and thus required immediate intervention, in fact if it had
been concluded that complainant was improperly denied overtime she could
have been awarded an appropriate remedy, including back pay, through a
grievance or EEO proceeding. Thus we do not find that the Postmaster's
instruction to complainant was motivated by discriminatory or retaliatory
animus.
4. Wages and pay stub
With respect to incidents (9) and (10), FAD #1 concluded that complainant
failed to provide any specific information in support of the contention
that she was denied a portion of her January, 1996 wages or her pay stub.
On appeal, complainant contends that the agency's failure to produce
the wage information as part of its ROI warrants drawing an adverse
inference of retaliatory or discriminatory motive. Based on our review
of the EEO Counselor's Report, complaint, and complainant's affidavit,
we conclude that complainant has not provided sufficient information
regarding the allegedly missing wages, and further has not demonstrated
any connection to a discriminatory or retaliatory motive.
5. Lunch schedule and clocking out
With respect to incident (14), FAD #2 found that complainant's supervisor
did instruct her to clock out for lunch on time. FAD #2 found that the
comparison male employee identified by complainant was not similarly
situated to her because he did not have a set lunch schedule, whereas
complainant did. On appeal, complainant contends that the agency's
finding of the absence of a similarly situated comparator demonstrates
that complainant was the only employee with a set lunch schedule.
However, complainant's supervisor attests that at that time, all
the machine operators with a bid, and the bulk mail clerks, had set
lunch schedules, whereas complainant's cited comparator is one of the
few individuals who at that time did not have set lunch schedules.
Moreover, in her January 17, 1997 memorandum regarding this matter,
complainant asserted that when she confronted her supervisor about
why she had yelled at complainant about her lunch schedule and not
the comparator, the supervisor stated that it was because complainant
"never even talked to her" and also because the comparator "did the
work of three people." We note that this discussion as recounted by
complainant supports her supervisor's contention that her treatment of
complainant was not attributable to discrimination or retaliation.
6. Removal from premises
FAD #2 further found that when complainant failed to follow a direct
order to leave the premises, she was put off the clock by her supervisor
but still refused to leave the building, and thereafter the supervisor
called the police to escort complainant off the premises. FAD #2 also
found that complainant was not entitled to receive a written instruction
to leave the building, which complainant claims she sought in order to
protect herself against later being charged AWOL. On appeal, complainant
contends that the agency ignored the statements of various witnesses
who assert that complainant's supervisor summoned her in a rude manner.
See, e.g., ROI Exhibit 3 at 5 (witness states that supervisor's tone
was rude when she summoned complainant). However, the evidence is
disputed regarding whether complainant improperly refused to meet with
her supervisor, or to leave the premises when thereafter instructed,
triggering the events at issue. See, e.g., ROI Exhibit 2 at 4 (shop
steward states he advised complainant she should meet with her supervisor
as requested or else she risked being charged with insubordination);
Affidavit B (supervisor attests she followed instructions from labor
relations representative to call police if complainant would still not
comply with the direct order to meet with her following re-issuance
of the order in front of another supervisor and then in front of the
shop steward, issuance of a verbal warning that failure to comply would
result in being placed off the clock and suspension, and complainant's
continued refusal to leave the premises when thereafter ordered to
do so). Weighing this testimony regarding the events in question,
we do not find complainant established that, more likely than not,
the challenged actions were motivated by discrimination or retaliation.
7. Additional alleged incidents of harassment
Finally, with respect to incidents (2) and (12), FAD #1 summarily
concluded that complainant had not established she was subjected to
a hostile work environment based on the incidents at issue. The FAD
stated that complainant's hostile work environment claim was based on
the following alleged incidents: (1) on October 14, 1996, her supervisor
yelled at her while she was eating lunch, stating "[i]f you can't work
and talk at the same time don't talk"; (2) on an unspecified date, her
supervisor singled complainant out for using a photocopy machine and said
"look at the sign; don't you know how to read"; (3) on an unspecified
date, S1 came up to complainant while she was on the phone and told
her that she should not be calling anyone. We note that incident (13),
complainant's contention that her supervisor yelled at her for returning
late from a break, is similarly part of her harassment claim, as are
all of the other incidents referenced above, as well as complainant's
contention that the Postmaster gave preferential treatment to the acting
supervisor by selecting her for temporary supervisory duties and by
permitting her to disregard various rules. FAD #1 summarily concluded
that complainant"was not subjected to a hostile work environment and was
not yelled at by her supervisors." Complainant contends that the agency
disregarded witness statements indicating that she was in fact yelled
at by her supervisor as alleged. Based on our review of the record,
weighing the conflicting factual accounts provided by complainant, the
co-worker witnesses, and the various supervisors at issue, we conclude
complainant has failed to demonstrate that, more likely than not,
the actions at issue were motivated by discrimination or retaliation.
Accordingly, whether viewed as incidents of disparate treatment or as
a pattern of harassment, we find that complainant has not proven by a
preponderance of the evidence that the harassment of which she complains
was motivated by her race, national origin, sex, age, disability, or
in reprisal for prior EEO activity. See Dalton v. United States Postal
Service, EEOC Request No. 05940458 (March 9, 1995).<8>
We note, however, that complainant's contention in her investigative
affidavit that she was subjected to discrimination based on her national
origin is based in part on the assertion that she was discriminated
against because of her Hispanic accent, and this was not specifically
addressed in the FAD. Complainant contends that: "[the] Postmaster,
supervisor [], and acting supervisor need to understand that we are there
to do a job and just because some of us have a heavy accent, might not
understand exactly what they want the first time around, and are older
females who they feel can be intimidated, [they] have no right to treat
us differently." ROI at A-7. Complainant's investigative affidavit does
not elaborate on the basis for this contention. Id. The Postmaster
responded to complainant's contention as follows: "[complainant]
does have an accent but I do not have any trouble understanding her."
ROI at B-4. The referenced supervisor, who identifies himself as being
of Mexican-American descent, responded in his affidavit as follows:
"[complainant] does indeed have an accent, but being of Mexican origin, it
is really not that noticeable to me." ROI at C-2. The referenced acting
supervisor, who also identifies herself as being of Mexican American
descent, did not specifically address this contention in her affidavit.
We note that complainant's hearing exhibits included a memorandum
dated July 8, 1993 from a Plant Manager at the agency's San Francisco
facility which asserted that English is the "official business language
of the USPS and the San Francisco PD&C" for manager-to-manager and
manager-to-subordinate communications, and that "[c]ommunicating in
languages other than English often makes us 'English Only' people
feel left out (. . . and it's only human at times for us to wonder
'are they talking about us?')." Complainant's Hearing Exhibits at 425.
Complainant, however, has presented no evidence or argument regarding the
significance of this document relative to the instant national origin
discrimination claim, and not demonstrated any connection between the
individual plant manager who issued this memorandum at another facility
in a different city and the management officials whom she has named as
responsible for the harassment she challenges at the Benicia, California
facility. Moreover, complainant has produced no evidence to indicate
that, in denying overtime or taking the other actions she challenges,
her own supervisors here at issue discriminated against her based on
her having an accent or speaking Spanish.<9>
Denial of Reasonable Accommodation
In addition to alleging disparate treatment and harassment based on
disability as addressed above, complainant contended in her investigative
affidavit that the agency denied requested accommodations of her physical
disability (shoulder tendinitis) by violating restrictions memorialized
in her limited duty job offers. The FAD does not address this claim.
As a threshold matter, complainant must establish that she is a �qualified
individual with disability� within the meaning of the Rehabilitation Act.
29 C.F.R. �� 1630.2(g) and (m).<10> However, in the instant case, we
need not reach the issue of whether or not complainant is a qualified
individual with a disability within the meaning of the Rehabilitation
Act because even assuming arguendo that she is, she has failed to prove
that she was denied her requested reasonable accommodations. Complainant
asserts that management required her to exceed her lifting and reaching
restrictions by lifting certain cases of mail and by cleaning certain
machinery, and that she was forced to bid on another assignment due to her
light duty status. ROI Affidavit A and Exhibit 6b at 5. By contrast,
management contends that her restrictions were always honored, that her
bid was modified together with those of the other distribution clerks
to include certain additional duties. See, e.g., ROI Affidavit B-4.
The various witness statements in the record do not address this issue.
Further, the Postmaster denies complainant's assertion that the agency
generally takes the position that only "100% healthy" people are eligible
for distribution clerk positions. Accordingly, weighing this evidence,
we find that complainant has failed to prove by a preponderance of the
evidence that she was required to work outside of her restrictions.<11>
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S1199)
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:
May 11, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive SecretariatCERTIFICATE OF
MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Opportunity Assistant
1 On 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.
2This complaint was originally dismissed by the agency. The Commission
vacated the dismissal and remanded the complaint for processing.
See Valdez v. United States Postal Service, EEOC Appeal No. 01973742
(February 6, 1998).
3Prior to withdrawing the hearing request, complainant's counsel requested
that the AJ attach all of complainant's proposed hearing exhibits to
the hearing transcript, and the AJ granted this request. Complainant's
counsel states that the exhibits contain numerous relevant documents
and witness statements which the agency failed to include in the ROIs.
4We note that although complainant argues on appeal that there are
numerous relevant witnesses from whom the EEO investigator failed to
obtain a statement, only a few of those witnesses were actually included
by complainant on her witness list.
5In order to prevail on a claim of harassment based on race, national
origin, sex, reprisal, or disability, complainant must demonstrate that:
(1) she was subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of employment and create an abusive or
hostile environment; and (2) the harassment was based on her membership
in a protected class, i.e., based on an impermissible factor such as
her race, national origin, sex, age, disability or reprisal. Cromar
v. Department of Justice, EEOC Appeal No. 01951366 (January 23, 1998);
see also Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
6Specifically, the supervisor who denied complainant overtime attested
that he and the shop steward explained to complainant that to place
her on overtime, notwithstanding that she was not on the ODL, "would
necessitate working 'V' time for the people on the ODL, and I would not
authorize that, so due to that reason it would be contractually incorrect
to allow her to work ...." ROI 4F-945-1262-96 at Affidavit C-2.
7With respect to incident (8), FAD #1 concluded that complainant failed
to state a claim under Title VII, finding that overtime desired lists
may be viewed by other employees, and also employees may simply observe
who is working overtime and who is not. Even if this incident is viewed
as part of complainant's harassment claim, we find that complainant has
failed to establish any discriminatory or retaliatory motive.
8We note with respect to complainant's claims of retaliatory disparate
treatment or harassment, the Commission interprets the statutory
retaliation clauses "to prohibit any adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity." EEOC Compliance Manual,
Section 8 (Retaliation) at 8-13 - 8-14 (May 20, 1998). Where reprisal
is the basis for a Title VII claim, an complainant may establish a
prima facie case of discrimination by showing: (1) that he engaged in
prior protected activity; (2) that an official named in the complaint
knew of that activity; (3) that he was disadvantaged by an action of
the employer subsequent to or contemporaneous with such opposition and
participation; and (4) that the protected activity and the adverse action
were sufficiently close in time to permit an inference of retaliatory
motive. Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.) aff'd, 545 F.2d 222 (1st Cir. 1976).
Complainant has demonstrated that she engaged in prior EEO activity of
which her supervisors were aware, occurring throughout a time period
of several years preceding the incidents here at issue, and subject to
publicity. See, e.g., Complainant's Hearing Exhibits at 444. However,
even assuming complainant established a prima facie case of retaliation,
we nonetheless conclude for the reasons stated elsewhere in this decision
that complainant has failed to prove that, more likely than not, the
agency's actions were motivated by reprisal.
9Discrimination based on accent and discriminatory English-only policies
are two legally distinct types of national origin discrimination,
although we recognize that the two may interrelate in particular cases.
We note that in a previously-filed complaint, complainant alleged that
on May 6, 1995, she was harassed when a co-worker told a supervisor
not to allow complainant to speak Spanish on the workroom floor.
See Valdez v. United States Postal Service, EEOC Appeal No. 01972010
(March 25, 1999); ROI Exhibit 10E. In that case, the EEOC AJ noted
that to the extent complainant was also seeking to challenge the
agency's English-only policy itself, that issue was not presented, but
complainant could initiate EEO counseling to raise such a challenge.
While the Commission's decision on appeal affirmed the AJ's findings
and conclusions, the Commission nonetheless instructed the agency that
"English-only policies, when applied at all times, are presumed to
violate Title VII and will be closely scrutinized." Valdez v. United
States Postal Service, EEOC Appeal No. 01972010 at n.4 (March 25, 1999)
(citing 29 C.F.R. � 1606.7). While complainant has not raised such a
claim in the instant case, we nevertheless note that the above-referenced
July 8, 1993 memorandum by the San Francisco facility plant manager
purports to announce a presumptively invalid English-only policy for
that facility. Although that policy is not before us in this case,
we hereby urge the agency to ensure, via internal assessment, training
and other appropriate methods, that none of its facilities maintain,
in policy or practice, an English-only rule which violates Title VII.
See 29 C.F.R. � 1606.7(b) (a rule requiring that employees speak only
in English at certain times must be justified by business necessity);
EEOC Compliance Manual, Section 623 ("Speak-English-Only Rules"); Garza
v. Department of the Army, EEOC Appeal No. 01924360 (October 1, 1993)
("[m]anagement's requirement that English be spoken in the conduct of all
business . . ., even during communications between two foreign language
speakers, was too broadly drawn to shield the agency from liability");
compare Daly v. United States Postal Service, EEOC Appeal No. 01933547
(September 14, 1995) (analyzing claim of national origin discrimination
based on accent).
10The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
11 On appeal, complainant additionally contends that the agency
either failed to accommodate her, or subjected her to a hostile work
environment because of, her mental disability ("generalized anxiety and
depressive disorders"). Complainant's Brief at 22. The record reflects
that subsequent to the events here at issue, complainant's claim for
worker's compensation based on her anxiety and depression diagnoses was
approved, based upon the conclusion that these conditions resulted from
a 1993 physical assault on complainant by a co-worker. However, in her
formal complaints and investigative affidavits, complainant only raised
her depression and anxiety as claimed damages allegedly caused by the
agency's actions, not as a basis for the alleged discrimination. Indeed,
when the Administrative Judge announced the issues presented in the case
for hearing, she identified complainant's physical disability claim,
but no mental disability claim, and there was no objection by counsel.
HT at 3-4. To allow complainant to raise a basis not presented to the
agency at some point prior to its final determination would thwart the
investigative process. Absent a compelling reason, an complainant may
not add a new basis on appeal. Wodjak v. Department of the Treasury,
EEOC Appeal No. 01952440 (March 27, 1997). Complainant has presented no
such reason.