01974929
04-12-2000
Lupe Garnica, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.
Lupe Garnica v. United States Postal Service
01974929
April 12, 2000
Lupe Garnica, )
Complainant, )
) Appeal No. 01974929
v. ) Agency No. 4F940119596
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
bases of race (Latin), national origin (Spanish), sex (female), reprisal
(prior EEO activity), and age (DOB 5/25/50) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq . and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001.
ISSUES PRESENTED
The issues on appeal are whether complainant has proven by a
preponderance of the evidence that she was subjected to unlawful
employment discrimination or retaliation on the above-cited bases when:
(1) she was given a seven-day suspension on May 11, 1996 for irregular
attendance, which was later reduced to a letter of warning (hereinafter
"LOW"); (2) she was given a LOW on May 29, 1996, for failure to follow
instructions/unauthorized penalty overtime; (3) in April/May/June 1996,
she was denied time to process her EEO complaint; (4) on July 9, 1996,
she was sexually assaulted while delivering mail and management failed
to properly investigate; and (5) on an ongoing basis, her supervisor
discussed her attendance, sick leave, and overtime and reprimanded her
for taking long breaks on the workroom floor.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Full-Time Carrier Technician, PS-06, at the agency's Mission Annex
Postal Facility in Mission Annex, California.
Believing she was a victim of discrimination due to the incidents noted
above, complainant sought EEO counseling and, subsequently, filed a
complaint on August 20, 1996. At the conclusion of the investigation,
the agency sent complainant a copy of the investigative file and appeal
rights, specifying that complainant had thirty (30) days from the date
she received the investigative file, to request a hearing before an
Administrative Judge (AJ). The record establishes that complainant
received the investigative file and appeal rights on December 20, 1996.
The record also contains complainant's request for a hearing, postmarked
January 24, 1997.
On April 30, 1997, the agency issued a final decision, finding
against complainant on all of her claims. The agency first noted that
complainant's request for a hearing was untimely. The agency argued that
complainant received notification of her appeal rights on December 20,
1996, and therefore had only until January 19, 1997, to timely request a
hearing before an AJ. Because January 19, 1997, was a Sunday and January
20, 1997, was a federal holiday, complainant had until January 21, 1997,
to timely request a hearing. Her request for a hearing was postmarked
January 24, 1997, and therefore, the agency noted, it was untimely.
The agency then concluded that complainant had not established a prima
facie case of discrimination or retaliation on any of her claims.
The agency argued that records established that complainant had no
prior EEO activity, an allegation that complainant did not contradict.
Moreover, the agency found that complainant failed to establish that she
was treated differently than similarly situated individuals not within
her protected classes.
Finally, the agency argued that even if complainant had established
a prima facie case on any of her claims, various supervisors
named in complainant's complaint credibly testified to legitimate
non-discriminatory reasons for all actions taken involving complainant.
The agency also pointed to records establishing that male and female
employees of varying ages and races/national origins other than
Hispanic/Latin/Spanish, were also disciplined for attendance problems
and failure to follow instructions/unauthorized penalty overtime.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she did timely request a hearing
before an AJ, in that she did not receive the investigative file and
accompanying appeal rights until December 27, 1996. Complainant also
alleges that the EEO counselor/investigator improperly dismissed her
complaint as a form of retaliation.
The agency raises no new contentions on appeal and asks that the
Commission affirm its final decision.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant's contention that she
did not receive the investigative file and accompanying appeal rights
until December 27, 1996, is without merit. The record contains a
certified return receipt signed by complainant on December 20, 1996,
which matches the number printed on the appeal rights. The agency,
therefore, properly denied complainant's hearing request.
Because our analysis of Issue No. 5 of complainant's complaint bears
on our determination of the entire complaint, we turn first to this
issue. We find, after a thorough review of the record, that there is
insufficient evidence to allow a determination on the merits of Issue
No. 5.
Complainant contends that on an on-going basis, S1 improperly held
discussions with her on the workroom floor about attendance, sick leave
and overtime. Complainant also claims that S1 reprimanded her on the
workroom floor for taking overly long breaks and for having unsatisfied
customers, in an effort to harass her and make her look unprofessional in
front of her peers. Complainant alleges that S1 did not follow proper
procedures in informing her of any customer complaints that existed, and
that if there were specific complaints which were properly processed,
complainant could have resolved them. Complainant notes that this was
discriminatory treatment which created a hostile environment. It is
not clear from the record on what bases complainant is alleging this
discrimination was predicated, but in that complainant clearly alleged
overall discrimination on the bases of race, national origin, sex and age,
we will assume that this claim is also based on those categories.<2>
The record only contains complainant's affidavit explaining the issue,
and the affidavit of her supervisor (hereinafter S1) (Black, American,
Female, prior EEO activity, DOB 12/15/46) in which S1 denies that
complainant was ever reprimanded on the workroom floor and notes that
all attendance discussions and official discussions given for penalty
overtime took place off the workroom floor only. S1 also indicates that
she never reprimanded complainant about breaks on the workroom floor,
but did often remind complainant that her break was 15 minutes, not 30
minutes. However, the investigative file does not include affidavits
from witnesses who may have heard any discussions between complainant
and S1 which took place on the workroom floor, despite the fact that
complainant named a witness to one such discussion in her affidavit.
The record also does not include any legible evidence that any customer
complaints against complainant existed<2> or any evidence concerning
what S1 should have done if such complaints existed. S1's affidavit
does not even address what she did when customer's allegedly complained
about complainant or what the process for dealing with such complaints
would be. The investigative file names several employees whom S1 says she
also spoke with about being late from break and/or customer complaints,
but includes no documentation concerning how S1 dealt with these problems.
In essence, the investigative file only includes two contradicting
affidavits concerning the incidents described in Issue No. 5. While
complainant does have the burden of establishing discrimination, it is
clear from her affidavit that she named witnesses whom she felt helped
establish her case, but that the investigator failed to obtain affidavits
from these witnesses. The file was also incomplete in other ways, as
described above. Due to the insufficiency of the investigative file,
we are unable to make a decision on the merits of this issue.
CONCLUSION
Based on the above, the Commission concludes that this record lacks
the necessary information upon which to adequately determine if the
agency's actions were lawful under Title VII and the ADEA. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.404(c)(4)). Our regulations require
agencies to develop an impartial and appropriate factual record.
See Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108(b)). We therefore VACATE the agency's
finding of no discrimination in accordance with the following ORDER and
applicable regulations.
To avoid bifurcation of complainant's claims, we will remand her entire
complaint rather than issue a decision on the remaining claims. See King
v. Department of the Navy, EEOC Request No. 05950973 (January 16, 1997).
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
1. The agency shall ensure that the investigator obtains affidavits
from the witnesses mentioned in complainant's affidavit on pages 7-8.
These witnesses will be questioned about complainant's claims that S1
discussed with complainant on the workroom floor attendance, sick leave
and/or overtime and reprimanded complainant about long breaks and/or
customer complaints on the workroom floor. Statements of the race,
national origin, sex, prior EEO activity, and age of these witnesses
must also be obtained.
2. The agency shall ensure that the investigator obtains a list of
the complaints made by customers against complainant between April and
December 1996, with copies of these complaints attached.
3. The agency shall ensure that the investigator obtains documentation
pertaining to S1's discussions about overly long breaks and customer
complaints with the employees mentioned on page 15 of the investigative
report. Information about the race, national origin, sex, prior EEO
activity, and age of these employees must be provided and these employees
should submit affidavits answering the following questions:
a. Did you ever see or hear S1 talk with complainant on the workroom
floor about attendance, sick leave, and/or overtime or reprimand
complainant about long breaks or customer complaints on the workroom
floor?
b. Did S1 ever talk with you on the workroom floor about attendance,
sick leave, and/or overtime or reprimand you about long breaks or customer
complaints on the workroom floor?
c. Are you aware of other employees under S1's supervision whom S1
dealt with in this manner? If so, who are they?
The investigator must also obtain affidavits answering these questions
from any employee named, including information about the race, national
origin, sex, prior EEO activity, and age of these employees.
4. The agency shall ensure that the investigator obtains documentation
concerning the proper procedures for addressing customer complaints and
attendance, sick leave, and overtime infractions with employees.
5. The agency shall ensure that the investigator obtains any other
affidavits or records not specifically requested in this ORDER, and not
inconsistent with this opinion, which may be relevant in determining
the veracity of Issue No. 5.
6. Because we are remanding the entire complaint to avoid bifurcation,
in addition to supplying more information in regard to Issue No. 5,
we ORDER the agency to provide the following information concerning
complainant's other claims, as this will ensure the existence of an
appropriate factual record as required by our regulations:
a. A list from complainant specifying the prior EEO activity on which
complainant bases her reprisal claims.
b. Documentation establishing the proper procedures, as of 1996,
for dealing with the assault of a mail carrier by a customer on his or
her route.
c. Personnel records of any employees--supervised by complainant's
supervisor, or the supervisors who provided Affidavits C and D--who were
assaulted by customers between 1995 and 1996 and information on how
any such situations were handled. This information should also include
statements of the race, national origin, sex, prior EEO activity, and
age of these employees.
d. Personnel records for the comparative employees listed on page 7
of the investigative report, indicating whether those individuals cited
as receiving official discussions for excessive absences had received
similar discipline in the past.
e. Personnel records for the comparative employee listed in the 10th
position on the matrix on page 9 of the investigative report (Asian/Pac,
Burma, male, prior EEO activity, DOB 10/31/62), indicating any discipline
he received concerning unauthorized use of penalty overtime during 1996
and 1997.
7. The agency shall acknowledge that it has received the remanded
complaint within fifteen (15) calendar days of the date this decision
becomes final.
8. The agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. The agency shall then immediately issue to complainant a
copy of the supplemented investigative file. Thereafter, the agency shall
issue a new final agency decision within sixty (60) days. Copies of the
completed supplemental investigation and new final agency decision 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:
4/12/00
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 of mailing. I certify that
the 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.
2 The agency appears to have analyzed this claim as one of disparate
treatment rather than harassment. Since complainant clearly raised the
claim as one of harassment/hostile work environment, the agency should
have analyzed it as such, in addition to separately analyzing the claim
as one of disparate treatment, if also applicable. See Moore v. United
States Postal Service, EEOC Appeal No. 01950134 (April 17, 1997).
2 The investigative report cites to Exhibit 16 as including complaints
against complainant, but a review of these documents does not establish
whether these complaints were made about complainant or when they
occurred.