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.