01992726and01a04346
10-31-2000
Ramona L. Martinez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Ramona L. Martinez v. United States Postal Service
01992726; 01A04346
October 31, 2000
.
Ramona L. Martinez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal Nos. 01992726; 01A04346
Agency Nos. 4F-950-1256-96; 4F-950-0118-99
Hearing Nos. 370-97-X2456; 370-AO-X3002
DECISION
Complainant timely initiated appeals from the final agency decisions
(FADs) concerning her two equal employment opportunity (EEO) complaint
of unlawful 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeals are hereby
consolidated and accepted pursuant to 29 C.F.R. � 1614.405. In the
complaint at issue in appeal no. 01992726, complainant alleges she
was discriminated against based on her sex (female) and national origin
(Mexican-American) when, on August 9, 1996, she was told not to go to the
window area because she was out of uniform, and was harassed regarding her
medical restrictions. In the complaint at issue in appeal no. 01A04346,
complainant alleges she was discriminated against based on her sex,
national origin, disability ("chronic neck pain, left shoulder rotator
cuff tear, and left arm reflex sympathetic dystrophy with sequelae"),
and in reprisal for prior EEO activity when, on April 21, 1999, following
an on-the-job injury, she was given a direct order to fill out CA-1 and
CA-17 forms, and was subsequently instructed that she could not see her
own physician in lieu of seeing the agency physician. For the following
reasons, the Commission AFFIRMS the FADs.
The record reveals that complainant, a Distribution Clerk in the
agency's Watsonville, California facility, filed formal EEO complaints
with the agency on September 3, 1996 and June 18, 1999, alleging that
her supervisor (S1) discriminated against her as referenced above.
At the conclusion of the investigation on each complaint, complainant
received a copy of the investigative report, and in both cases requested
a hearing before an EEOC Administrative Judge (AJ). In both cases,
an AJ issued a decision without a hearing, finding no discrimination.
On appeal in both cases, complainant contends that the AJ erred when
she found that complainant failed to establish a prima facie case
of disparate treatment, inasmuch as complainant identified similarly
situated employees who were treated differently. Further, in both cases,
complainant contends that the incidents in question were part of a pattern
of harassment by her supervisor, which should be viewed in conjunction
with other incidents she has raised which the agency has fragmented into
separate complaints.
As a threshold matter, the Commission notes that in both cases, the AJ
applied the incorrect legal standard in determining whether complainant
either stated a claim or established a prima facie case of disparate
treatment. In both cases, the AJ incorrectly held that the United States
Supreme Court's decision in Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998), changed the definition of an "adverse employment action"
actionable under Title VII, and then found that complainant was not
"aggrieved" for purposes of stating a claim. To the contrary, Ellerth
addressed the definition of a "tangible employment action,"<2> relevant
only where determining the appropriate standard for agency liability
for harassment by supervisors. It is wholly unrelated to the scope of
"adverse employment actions" cognizable as discrimination under Title VII.
Thus, by applying the "tangible employment action" definition from the
harassment liability analysis, the AJ decisions in the instant cases
applied too narrow a definition of actionable claims. The Commission's
federal sector case precedent has long defined an "aggrieved employee" as
one who suffers a present harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In addition, in analyzing the complaint at issue in appeal no. 01A04346,
the AJ incorrectly inquired, for purposes of determining whether a
prima facie case of retaliation was established, whether the conduct
complainant challenged affected a term or condition of her employment.
While this standard is proper for discrimination claims under Title
VII, the Commission has stated that adverse actions need not qualify
as "ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. See EEOC Compliance
Manual Section 8, "Retaliation" No. 915.003 (May 20, 1998) at 8-13 - 8-14.
Instead, the statutory retaliation clauses prohibit any adverse treatment
that is based upon a retaliatory motive and is reasonably likely to deter
the complainant or others from engaging in protected activity. Id.; see
Sanders v. Department of Education, EEOC Request No. 05990744 (October
13, 2000); Lok v. Department of Justice, EEOC Appeal No. 01A01651 (June
7, 2000); Carroll v. Department of the Army, EEOC Request No. 05970939
(April 4, 2000); Torrez v. Social Security Administration, EEOC Request
No. 05950947 (March 10, 1998).
Nevertheless, after a careful review of the record, assuming arguendo
complainant has stated a claim, and further has established a prima facie
case of disparate treatment on any basis,<3> we do not find that there
were any disputed material facts which precluded entry of summary judgment
for the agency, inasmuch as complainant failed to proffer any evidence
that the agency's proffered reasons for its actions were pretexual.
Further, analyzing all of the incidents together which complainant cites
as comprising harassment, as set forth amply in the investigative file
in appeal no. 01A04346, we similarly find that there are no disputed
material facts precluding issuance of summary judgment in favor of the
agency, because complainant has failed to establish that the incidents
in question, even in combination, comprised "severe or pervasive" conduct
sufficient to establish a prima facie case of harassment. See Humphrey
v. United States Postal Service, Appeal No. 01965238 (October 16, 1998).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the ultimate finding of no
discrimination reached in the FADs in both cases.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
October 31, 2000
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2An employer is subject to vicarious liability for sexual harassment when
it is "created by a supervisor with immediate (or successively higher)
authority over the employee." Burlington Industries, Inc., v. Ellerth,
524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
When the harassment does not result in a tangible employment action
being taken against the employee, the employer may raise an affirmative
defense to liability, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any sexually harassing behavior;
and (b) that appellant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the agency or to avoid
harm otherwise. Id.; see also EEOC Enforcement Guidance on Vicarious
Employer Liability for Sexual Harassment by Supervisors (June 18, 1999)
at 12. This defense is not available when the harassment results in a
tangible employment action (e.g., a discharge, demotion, or undesirable
reassignment) being taken against the employee. See Wild v. Department
of Defense, EEOC Appeal No. 01984101 (September 12, 2000).
3To the extent disability is raised as a basis in the complaint at
issue in appeal no. 01A04346, we assume arguendo, as the AJ did, that
complainant was an individual with a disability within the meaning of
the Rehabilitation Act, and thus do not decide the issue in adjudicating
the instant appeals.