0120091408
08-19-2009
Margamelly D. Palacios, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Margamelly D. Palacios,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091408
Hearing No. 510200800275X
Agency No. 4H330000408
DECISION
On February 6, 2009, complainant filed an appeal from the agency's January
7, 2009 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Sales, Services, and Distribution Associate at the
agency's Homestead-Princeton Branch Office in Homestead, Florida.
On January 5, 2008, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Hispanic), sex,
and color (White) when (1) on October 6, 2007, she became aware that
the supervisor against whom she had previously filed a claim of sexual
harassment was once again working as her supervisor and (2) management
did not investigate the incident appropriately.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged. Complainant makes no arguments
on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Here, we find that complainant has not shown that the agency subjected
her to unlawful discrimination. The record indicates that complainant
initially contacted management on August 25, 2007, alleging that her
supervisor (S1) had subjected her to sexual harassment. (Report of
Investigation, Affidavit A). As a result of this complaint, management
transferred S1 to another post while an investigation was conducted.
(R.O.I., Affidavit B; C) At the conclusion of the investigation, the
agency found that complainant's claim of sexual harassment could not
be substantiated. (R.O.I., Affidavit D).
The record indicates that S1 returned to complainant's facility
in October 2007, due to a shortage in personnel. When complainant
arrived at work on October 6, 2007, she complained to management that
she was not comfortable working in the same facility as S1. (R.O.I.,
Affidavit A). Management again investigated complainant's allegations.
The record indicates that the investigation included statements from
complainant and several witnesses, as well as a fact-finding report.
(R.O.I., Affidavit C; D).
We find that complainant failed to establish a prima facie case of
harassment. The evidence of record does not show that the incidents
alleged had the purpose or effect of unreasonably interfering with her
work performance and/or creating an intimidating, hostile, or offensive
work environment. Additionally, we find that complainant has not
shown that management failed to investigate her allegations properly.
In so finding, we note that the record shows that the agency promptly
and thoroughly investigated complainant's allegations of harassment.
We find that complainant has not shown that the agency subjected her to
unlawful discrimination. Therefore, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 19, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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