01a00968
04-17-2000
Carmen Y. Limparis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carmen Y. Limparis, )
Complainant, )
)
v. ) Appeal No. 01A00968
) Agency No. 1K-209-0003-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
The Commission finds that the agency's September 28, 1999 decision
finding that the agency did not discriminate against complainant based
on complainant's race (Puerto Rican), sex (female), national origin
(Puerto Rican), and retaliation, was proper.<1>
The agency defined the complaint as alleging that complainant was
discriminated against when:
Complainant was denied a Maintenance Control position at Suburban MD
P&DC.
Since July 6, 1997, complainant has been required to bring in
documentation for sick leave used.
Complainant was denied union representation on September 10, 1997 and
made to go against an administrative judge's order.
Since July 6, 1997 the agency has not supplied complainant with the
materials needed for complainant to perform her job.
Since July 6, 1997 complainant has requested and been denied a locker.
Since July 6, 1997 complainant has been denied a key to the VMF buildings
and/or access via her card key.
Complainant has not challenged the framing of the complaint. Complainant
did not request a hearing in the instant matter.
Regarding the selection at issue, the record shows that the Selectee's
race was black and sex was male. The Maintenance Eng. Spec. stated that
complainant scored low in the Review Panel's assessment in part because
of her �poor� interview. Manager A stated that she was one of the review
panel members and that she evaluated the candidates in accordance with
their responses to the �KSA's.� Manager A stated that complainant was
not selected because of her responses to the KSAs of ability to work
with others; ability to compile & summarize information; and ability to
review incoming material. Manager A found that complainant's responses
to these three KSAs indicated that complainant had no experience or
willingness to perform these functions. Manager A stated that the
selectee was chosen because he passed all KSA's.
Regarding the sick leave issue, Manager B, stated, �It is standard
practice to require employees to provide documentation when they have
a record of extensive absences, as [complainant] does.� Manager B
further stated, �I am aware that [complainant] was absent from duty many
times claiming mental stress, and I know that she was asked to provide
documentation for those absences.�
Regarding issue 3 (described supra), complainant claims that Manager B
met with her on September 10, 1997, in order to discuss her concerns with
the agency. Complainant sated that she asked for a union representative
prior to and at the meeting. Complainant also claims that an EEOC
Administrative Judge told complainant not to discuss anything with
anybody at the agency, but that Manager B �did not care.� Manager B
stated in an affidavit that complainant did not show him any Order from
the administrative judge and that he did not want to discuss any case
complainant had before an administrative judge. Manager B stated that
he �was only offering [his] help as any concerned manager would do for
their employee.� Regarding union representation, the Manager stated:
�My discussion with [complainant] had nothing to do with discipline and
there was no requirement or expectation that a representative needed to
be present.�
The Maintenance Eng. Spec. stated in an affidavit that the other mechanics
in complainant's group were given the same supplies and equipment that
complainant was given.
Regarding the locker incident, Manager B stated that when complainant
informed him that she was not given a locker, he gave her permission
to get a coworker to help her get a locker. Manager B stated that when
complainant told him that somebody had cut the lock off of her locker,
he informed her coworkers that he wanted �that type of activity to
stop immediately.� Manager B stated that he never heard anything more
about this issue. Regarding the key issue, Manager B stated that access
to the VMF is possible through at least six doors without a card key.
Two comparative employees stated in affidavits that when they went to the
VMF facility, they simply walked into the VMF facility which was unlocked
and that they were never given keys or an access card to enter the VMF.
The Commission finds that the agency's explanations provided regarding the
claims at issue in this complaint to be legitimate and non-discriminatory.
Complainant has not rebutted such explanations. For instance, complainant
has not shown that she was more qualified than the selectee or that other
similarly situated persons of a different race, sex, or national origin,
or who had not engaged in prior protected activity, were not required to
provide sick leave documentation, were provided materials that complainant
was not provided, were denied a locker, or were provided keys.
Complainant's claim regarding the denial of union representation concerns
an interpretation of the collective bargaining agreement that is more
appropriately handled through the grievance process. Complainant's claim
regarding her forced violation of an EEOC Administrative Judge's Order
should not be handled separately from the underlying matter (i.e., the
matter that was before the administrative judge). Even if complainant's
claims regarding the denial of union representation and forced violation
of an EEOC Administrative Judge's Order were properly considered as
matters of discrimination, we still find that complainant has not shown
that the agency's actions in these incidents were motivated in any way
by prohibited discriminatory animus.
After reviewing the entire record, the Commission finds that complainant
has failed to show by a preponderance of the evidence that any of the
actions at issue were motivated in any way by prohibited discriminatory
animus.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S 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:
April 17, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE 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
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.