01970082
05-30-2000
Cynthia Mendoza, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cynthia Mendoza v. United States Postal Service
01970082
May 30, 2000
Cynthia Mendoza, )
Complainant, )
)
)
v. ) Appeal No. 01970082
) Agency No. 4-G-760-1011-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On September 26, 1996, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to her complaint
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.<1>
ISSUE PRESENTED
The issue presented in this appeal is whether complainant established,
by a preponderance of the evidence, that the agency discriminated against
her based on national origin (Hispanic) and reprisal (prior EEO activity)
when it allegedly harassed her.
BACKGROUND
According to the record, during the period in question, complainant
was employed as an Accounting Technician, PS-06, at a Texas location of
the agency. Believing she was a victim of discrimination, complainant
sought EEO counseling, and, subsequently, filed a complaint on December
14, 1994 and February 9, 1995.<2> In the complaints, she alleged that
the agency discriminated against her based on national origin (Hispanic)
and reprisal (prior EEO activity) when:
(1) it transferred her to another section within her department for
cross-training;
(2) it questioned her about a personal phone call;
(3) it denied her the use of annual leave and the accrual of overtime
on the same day;
(4) it reprimanded her for visiting another agency employee during
her break;
(5) it gave her an official discussion regarding early clock rings;
(6) it denied her sick leave request for surgery;
(7) it gave her an official discussion regarding sick leave usage;
(8) it instructed her to get a doctor's release authorizing her to work
under any direct supervision in the office.
In her informal complaints of discrimination on the above issues,
complainant requested compensatory damages as a remedy.
At the conclusion of the complaint's investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). A hearing was held
on June 12, 1996 and the AJ subsequently issued a recommended decision.
In it, she recommended a finding of discrimination based on national
origin and reprisal as to claims (2), (3), (6), (7), and (8). She also
recommended a finding of discrimination based on reprisal only as to
claims (4) and (5). The AJ found no discrimination on either basis
regarding claim (1) as well as no discrimination based on national origin
as to claims (4) and (5). Commensurate with her findings and pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), the AJ recommended that complainant
receive remedies that would make her whole.
On September 5, 1996, the agency issued a final agency decision (FAD)
concurring with the AJ where she found no discrimination and differing
with her where she found discrimination. In summary, the FAD found no
discrimination based on national origin or reprisal regarding any of
complainant's claims. This appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Commission has reviewed the full administrative record and we find
that the AJ's factual findings support her ultimate factual conclusion
of discrimination based on national origin and reprisal regarding claims
(2), (3), (6), (7), and (8) as well as discrimination based on reprisal
only regarding claims (4) and (5). We further find that the AJ's factual
findings support her determination of no discrimination based on national
origin and reprisal regarding claim (1) and no discrimination based
on national origin only regarding claims (4) and (5). Based on the
foregoing, we reverse the agency's decision.
CONCLUSION
After a careful review of the record and for the reasons cited above, it
is the decision of the Commission to REVERSE the agency's final decision
and to find that the AJ's factual findings support her ultimate conclusion
of discrimination as to some claims.
ORDER
1. The agency is directed to provide EEO training for complainant's
supervisor (S-2) as well as the Manager of Finance for the District
during the period in question. This training shall address management's
responsibilities with respect to eliminating discrimination in the Federal
workplace and all other supervisory and managerial responsibilities
under equal employment law.
2. The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the appropriate EEOC field office.
Thereafter, the administrative judge shall issue a decision on these
issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.109), and the agency shall issue a final
action in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. �1614.110) within forty (40) days of receipt of
the administrative judge's decision. The agency shall submit copies of
the decision of the Administrative Judge and the final agency action to
the Compliance Officer at the address set forth below.
3. The agency shall post, at the Fort Worth, Texas Office, 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
within ten (10) calendar days of the expiration of the posting period.
4. 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 evidence that the corrective actions
ordered above have been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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 30, 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.
2In a letter dated March 22, 1995, the agency consolidated the two
complaints for joint processing under case number 4-G-760-1011-95.