01A30942
09-30-2003
Yvette Cardenas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.
Yvette Cardenas v. United States Postal Service
01A30942
September 30, 2003
.
Yvette Cardenas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area)
Agency.
Appeal No. 01A30942
Agency No. 4G780032099
Hearing No. 360-ZO-8077X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission VACATES AND REMANDS the agency's final order.
Complainant filed a formal complaint on or about August 3, 1999 alleging
that the agency discriminated against her based on gender and in reprisal
for her prior EEO activity when the agency denied her request for light
duty due to her pregnancy and when she was not permitted to work whereas
male employees were treated more favorably.
The agency dismissed complainant's claim of reprisal in a decision
dated August 20, 1999. The agency reasoned that complainant failed
to state a claim of reprisal because she did not demonstrate that she
had engaged in protected activity before the actions in question.
Thereafter, complainant filed an appeal contesting the dismissal.
The Commission in a letter dated August 24, 2000, determined that under
new regulations adopted November 9, 1999, the agency's dismissal was not
a final action and the matter was remanded to the Administrative Judge
for consideration. See 29 C.F.R. �1614.107(b).
The record indicates that complainant raised the issue of retaliation
on appeal and during the hearing but the AJ reached no decision as
to whether reprisal motivated the agency's actions. We note that
no testimony was taken during the hearing concerning the issue of
reprisal nor did the investigation cover the witnesses' knowledge
of complainant's EEO activity. Complainant alleges that one of the
responsible management officials, the Area Manager, may have been involved
in another EEO complaint in which a finding of reprisal was made.<1> On
remand the record should be supplemented to include evidence relevant to
complainant's claim of reprisal as well as consideration of the relevance
of the Commission's finding of reprisal involving the same responsible
management official.<2>
Considering that the Commission is remanding this matter to the
appropriate District Office for further proceedings, we postpone our
review of the remainder of the case until the record, in its entirety,
is before us. We note that the record contains evidence of pretext
which should be addressed in more detail on remand. That is, the agency
contends that it denied complainant's light duty request because of the
lack of light duty work, yet the Station Manager (S1) testified that there
existed work within complainant's restrictions that she could perform.
We also note that S1 testified that the decision to approve light duty
was not hers to make but was up to the Area Manager who she believed
did not like female employees. The record also indicates that the Area
Manager approved the light duty request of a male employee shortly after
denying complainant's request. This evidence should be addressed and
analyzed in more detail in the subsequent decision.
CONCLUSION
Based on the foregoing discussion, the Commission VACATES AND REMANDS
this matter to the appropriate District Office for supplementation of the
record on the issue of retaliation, for further analysis of the evidence
of pretext in determining whether unlawful discrimination occurred.
ORDER
This matter is remanded to the Hearings Unit of the San Antonio District
Office for assignment to an Administrative Judge for further proceedings
as directed herein. The agency is directed to submit a copy of the
complaint file to the EEOC Hearings Unit within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
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
September 30, 2003
Date
1Amaro v. United States Postal Service,
EEOC Appeal No. 01A20929 (May 29, 2003) (Hearing No. 360-99-8931X;
Agency Nos. 4-G780-0055-99; 4-G-780-0321-99).
2See Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas v. Green (411 U.S. 792, 802-803 (1973)
model to retaliation cases).