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

Equal Employment Opportunity CommissionNov 17, 2000
05980766 (E.E.O.C. Nov. 17, 2000)

05980766

11-17-2000

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


Ramona L. Martinez v. United States Postal Service (Pacific/Western

Region)

05980766

November 17, 2000

.

Ramona L. Martinez,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific/Western Region),

Agency.

Request No. 05980766

Appeal No. 01963816

Agency No. 4F-950-1030-95

Hearing No. 370-95-X2466

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Ramona

L. Martinez v. United States Postal Service (Pacific/Western Region), EEOC

Appeal No. 01963816 (April 3, 1998).<1> EEOC Regulations provide that

the Commission may, in its discretion, reconsider any previous Commission

decision where the requesting party demonstrates 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. See 29 C.F.R. �

1614.405(b).

In her original complaint, complainant alleged that she was

discriminated against on the bases of sex (female) and national origin

(Mexican-American) when on October 26, 1994, she was denied a request

for eight (8) hours of annual leave by her supervisor (S-1). In her

request to reconsider, complainant's representative notes that additional

material evidence was presented to the Commission on appeal, but that

our appeal decision affirming the agency's final decision does not

address this additional evidence. The request also contends that the

credibility of S-1 should be an issue, contrary to the finding of the

EEOC Administrative Judge, since evidence was provided that documents

relevant to the claim of discrimination were altered by S-1. Finally,

since the AJ issued a Recommended Decision (RD) without a hearing, the

request contends that the AJ did not have enough information on hand to

render a fair decision. In this regard, complainant had asked that she

be allowed to present information at the hearing that S-1 was heard to

use a racially derogatory remark on the workroom floor and that witnesses

also be allowed to testify to the past pattern of discriminatory treatment

exhibited by S-1, again to call S-1's credibility into question.

According to the local union agreement in effect at the time of the

complaint, requests for annual leave had to be received by the supervisor

at least three (3) days in advance. Complainant testified that she had

placed her request for eight (8) hours of annual leave to be taken on

October 28, 1994, on S-1's daily schedule clip board on October 25, 1994.

Thus, she would have met the three-day requirement. S-1, on the other

hand, testified that she left work at 12:30 p.m. on October 25, 1994, when

her tour of duty ended. It was not until she returned to work at 3:30

a.m. on October 26, 1994, that she found complainant's request for leave

on her clip board. Inasmuch as the request was not received by S-1 until

two days before the projected leave was to start, S-1 denied the request.

The AJ found that whether or not complainant placed her request for leave

on S-1's clipboard on October 25, 1994, was not a material issue of fact,

since complainant should have known from personal experience (1) that

an annual leave request would not be approved unless it was received at

least three days in advance; and (2) that the supervisor often did not

receive the leave form until the day after it was submitted.

Complainant alleged, in effect, that S-1 actually timely received the

request form on October 25, 1994, but then changed the date of receipt

to October 26, 1994, after the EEO investigation had begun. Documentary

evidence showed, however, that at least five other requests for leave by

complainant during 1993 and 1994 were not received by S-1 until the day

after they were submitted. Furthermore, leave forms from other employees

not in complainant's protected groups show that it was not uncommon for

S-1 to receive the form the day after it was turned in by the employee.

In addition, these forms show that annual leave requests that were

not received by S-1 within the requisite time frame were routinely

disapproved, notwithstanding the sex or national origin of the employee.

We therefore agree with the finding of the AJ that whether or not

complainant submitted her request for leave on October 25, 1994, was not

a material issue of fact, since documentary evidence showed that leave

forms from complainant and others not in her protected groups were often

not received by S-1 until the day after they were submitted, and that

annual leave requests not received within the requisite time frame were

uniformly disapproved by S-1. Thus, we further agree that complainant

failed to show that similarly situated individuals not in her protected

groups received more favorable treatment in similar situations. Hence,

we find it unlikely that S-1 would have altered the date of receipt of

complainant's request to October 26, 1994, given the past history of

leave requests by complainant and other employees not in her protected

groups.

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01963816 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 17, 2000

Date

1On 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.