01973465
03-08-2000
Judas J. Gamez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Judas J. Gamez v. United States Postal Service
01973465
March 8, 2000
Judas J. Gamez, )
Complainant, ) Appeal No. 01973465
)
v. ) Agency No. IF-908-1021-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
______________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the United States Postal Service, Long Beach Facility, Long Beach,
California (agency) concerning his 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> Complainant alleges
discrimination based upon his national origin (Hispanic)<2> and sex (male)
when: (1) on April 24, 1996 he was placed in an emergency off-duty status
without pay; and (2) on May 6, 1996 he was issued a Notice of Removal.
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659
(1999) (to be codified at 29 C.F.R. � 1614.405).
On June 28, 1996, complainant filed a formal complaint alleging
discrimination as referenced above. Complainant's complaint was accepted
for processing. Following an investigation, complainant received
notification of his right to request, within 30 days, a hearing before
an administrative judge or a decision by the agency without a hearing.
Complainant requested a decision by the agency without a hearing.
On February 20, 1997, the agency issued its Final Agency Decision,
finding no discrimination. It is this agency decision which the
complainant now appeals.
During the relevant time period, complainant worked as a Mail-Handler at
the agency's Long Beach P & DC facility, Long Beach, California. On April
20, 1996, complainant was involved in an altercation with a coworker
(CW). The record reflects that complainant and CW were working in the
same area. CW approached complainant and called him a "m_____ f_____."
Later, CW approached complainant again and told complainant to "hurry
up m_____ f_____." Complainant asked CW to stay away from him because
he did not like being treated like that. Complainant then pushed CW
causing him to fall against a bonus bilt.
Immediately following the altercation, complainant was placed on emergency
off-duty status without pay. The agency placed CW on administrative
leave. Agency officials affirmed that they were prohibited from placing
CW in an on-off duty status without pay because of his veteran status.
Following an investigation, the agency issued notices of removal to both
CW and complainant.<3>
Complainant alleged that because of his national origin and sex, he was
treated more harshly than employees involved in prior altercations of
a similar nature. Complainant identified seven comparison employees.
Complainant alleged that: (1) C1 (Black, female), a transitional employee,
received no discipline; (2) C2 (Filipino, male), a Mail-Handler,
received no discipline; (3) C3 (Black, female), a Mail-Handler,
received a seven-day suspension; (4) C4 (Black, male), a Mail-Handler,
received a Notice of Removal; (5) C5 (Black, female), a Mail-Handler,
received a seven-day suspension; (6) C6 (White, male), a Mail-Handler,
received a Letter of Warning; and (7) C7 (White, female), a supervisor,
received a 30-day suspension.
In addition, complainant asserts that with respect to several
altercations involving an Hispanic employee and a non-Hispanic employee,
the non-Hispanic employee was not disciplined.<4> However, complainant's
assertions were not investigated.
Complainant's second-level supervisor, S2 (White, male), affirmed that
he was involved in disciplining C1, C2, C6, and C7. However, S2 did
not address the basis for each disciplinary decision.
Complainant's first-line supervisor, S1 (White, male), affirmed that
he had direct knowledge of only three of the seven incidents which
complainant identified above. S1 explained that while C1 was involved
in an altercation, she was not disciplined because an investigation
determined that she was not the aggressor but rather the victim. S1 also
noted that the aggressor was terminated. S1 affirmed that while he
did not have direct knowledge with respect to the altercation dealing
with C4, he believed C4 received a suspension. With respect to the
incident with C7, S1 affirmed that it was determined that C7 shoved an
employee in an attempt to break-up an altercation between two employees.
S1 also affirmed that he could not respond to what happened on Tour
1, but did not indicate which individuals worked on Tour 1. Lastly,
S1 affirmed that the agency takes an assertive approach when handling
violent confrontations at work. According to S1, each incident is taken
seriously and investigated.
The record indicates that there have been no other employees placed
on emergency suspension within two years prior to the incident with
complainant. The record also indicates that, in the two years prior to
the incident with complainant, two employees (C8, Filipino, male) and
(C9, Filipino, male) received Notices of Proposed Removals for similar
offenses.
We find the record insufficient to determine whether or not complainant
was discriminated against as alleged. Specifically, we are unable to
determine whether C2 and C6 are similarly situated with complainant and
received more favorable treatment. We note that the record indicates
that C2 and C6 were supervised by S2. According to complainant, C2 and
C6 engaged in similar behavior as complainant but received more favorable
treatment. There is no explanation by the agency, or information in
the record, that disputes complainant's assertion. In addition, the
record is unclear as to whether C3 and C5 are similarly situated to
complainant since we do not know from the record whether S1 or S2 was
involved in disciplining those employees or the basis for the discipline
they received. Lastly, the record is devoid of information pertaining
to complainant's assertion that certain Hispanic employees were victims
of improper verbal and/or physical conduct by non-Hispanic employees
and were treated less favorably than their non-Hispanic counterparts.
Moreover, there is no information in the record as to whether S1 or S2
were involved in the disciplinary decisions of such individuals.
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
VACATE the agency's final decision finding no discrimination and REMAND
the case to the agency for a supplemental investigation in accordance
with our order below.
ORDER (D1199)
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall provide the identity of each employee who had been
charged with engaging in a verbal or physical altercation, including
but not limited to, violence or threats of violence, within two years
prior to the filing of complainant's EEO complaint.
Of those individuals identified above, including, but not limited
to, Mailhandlers, C2 and C6, the agency shall provide the following
information: (a) a description of each altercation; (b) all written
statements and other documents created as a result of each altercation;
(c) the discipline originally proposed, if any; (d) all responsible
management officials involved in the discipline decision; (e) the national
origin and sex of each employee identified; (f) the position title of
each employee identified; and (h) whether or not each individual held
a veteran status.
The agency shall provide the identity of all responsible management
officials who had any involvement whatsoever in the disciplinary decisions
regarding the following incidents: (a) two altercations between an
Hispanic Mailhandler (HM1)<5> and CW which allegedly occurred between the
years 1992 and 1994; (b) an altercation between an Hispanic Mailhandler
(HM2)<6> and CW which allegedly occurred in approximately March, 1995;
(c) an altercation between an Hispanic Mailhandler (HM3)<7> and S1 which
allegedly occurred allegedly in August, 1996.
For each altercation referenced in number two (above) the agency shall
provide affidavits from each responsible management officials setting
forth the following information: (1) a description of each altercation;
(2) discipline initially proposed, if any; (3) the national origin and
sex of each employee involved in each altercation; (4) the position
title of each employee identified; (5) whether or not each individual
held a veteran status; (6) an explanation for the discipline given,
and the basis for any differences in treatment among employees; and (7)
a description of how the responsible management official was involved
in the discipline initially proposed.
The agency shall provide all written statements provided by complainant
during the informal counseling process and referenced by complainant in
his formal complaint.
The agency shall provide complainant all information obtained pursuant
to this order. Following complainant's review of such information, the
agency shall obtain a rebuttal affidavit from complainant in response
to said information.
The supplemental investigation must be completed within ninety (90)
calendar days of the date this decision becomes final. 29 C.F.R. �
1614.108(e). The agency then shall provide complainant with a copy of
the supplemental investigative file. Thereafter, the agency shall issue
a final agency decision within sixty (60) calendar days. A copy of the
agency's notice transmitting the investigative file to the complainant
must be submitted to the Compliance Officer, as referenced below.
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 (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 (R1199)
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:
3/8/00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment 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.
2It is noted that the complaint and the investigation characterized
complainant's allegation as one of race discrimination.
3Later, in relation to a grievance, the Notices of Removal were reduced
to 30-day suspensions.
4The Commission is unable to determine if complainant raised these
incidents for the first time on appeal, since the file does not contain
several lengthy statements referenced by complainant during the informal
EEO counseling process and in his formal EEO complaint.
5 Complainant references this individual on page seven of his appellate
statement and alleges that he was abused by CW.
6 Complainant references this individual on page seven of his appellate
statement and alleges that he was abused by CW.
7 Complainant references this individual on page seven of his appellate
statement and alleges that he was abused by S2.