Ramona L. Martinez, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionOct 31, 2000
01992726and01a04346 (E.E.O.C. Oct. 31, 2000)

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.