01973513
03-24-2000
Sandra L. Cosio, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Sandra L. Cosio v. Department of Justice
01973513
March 24, 2000
Sandra L. Cosio, )
Complainant, )
) Appeal No. 01973513
v. ) Agency No. M916212
) M926231
Janet Reno, ) M926231A
Attorney General, )
Department of Justice, )
Agency. )
)
)
DECISION
Sandra L. Cosio (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her equal employment opportunity
(EEO) complaints of unlawful employment discrimination on the bases of
race/national origin (Mexican-American)<1>, sex (female), and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.<2> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.402).
ISSUES
The issues on appeal are whether complainant has proven by a preponderance
of the evidence that she was subjected to unlawful employment
discrimination or retaliation on the above-cited bases when management
took nine adverse employment actions against her and/or engaged in a
pattern of harassing behavior. The nine claims of adverse action are:
(1) she received a "fully successful" performance evaluation on May
25, 1990 and she did not receive a cash performance award in March,
1990; (2) she was not selected for a GS-7 position in July, 1990;
(3) her job assignments were unnecessarily and frequently changed;
(4) she was excluded from staff meetings and other smaller meetings;
(5) she was issued a letter of caution on October 12, 1991; (6)
she was sexually harassed from September, 1991 through October 1991
by the Chief Deputy of the San Diego District Office of the United
States Marshall Service (CD: Caucasian, male, no prior EEO activity);
(7) she was assigned receptionist duties on February 11, 1992; (8) she
was treated disrespectfully on February 19, 1992 by a supervisory deputy
(SD: Caucasian, male, no prior EEO activity); and (9) she was removed
from her position on April 8, 1992.<3> complainant also alleged that
these incidents created a hostile work environment.
BACKGROUND
The record reveals that at the relevant times, complainant was a GS-6
Administrative Clerk with the San Diego District Office of the United
States Marshals Service (hereinafter USMS).
Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed three formal complaint(s) on
September 6, 1991, January 29, 1992 and May 28, 1992. These complaints
were consolidated by the USMS EEO Office. At the conclusion of the
investigations, complainant received a copy of the investigative reports
and requested a hearing before an EEOC Administrative Judge (hereinafter
AJ). On December 12, 1996, the AJ issued a recommended decision (RD)
without a hearing, dismissing certain issues on procedural grounds and
recommending a finding no discrimination. The agency disagreed with
portions of the AJ's legal analysis and therefore only partially adopted
the RD. The agency concluded, after a separate legal analysis, that
complainant had not established that she was subjected to discrimination.
Procedural Dismissals
The AJ noted that complainant had filed a grievance regarding her
dismissal and that an arbitrator had denied the grievance on May
25, 1993, finding that the agency's dismissal of complainant for
unacceptable performance was supported by substantial evidence and not
based on discrimination. The AJ also noted that while there had been
an agreement between the parties that the arbitrator would not make a
determination regarding claims of discrimination, the arbitrator found
it very difficult to severe and contain the discriminatory aspects from
the evidence of unacceptable performance. The arbitrator noted that this
difficulty stemmed from the fact that the Union's case largely emphasized
the alleged discrimination. The AJ noted that complainant appealed the
arbitrator's decision to the Merits Systems Protection Board (MSPB),
but the decision was upheld.
Claim Nos. 1, 3-8
The AJ recommended dismissal of Claim Nos. 1, 3, 6, 7, and 8<4> under
the doctrine of res judicata and collateral estoppel, finding that
these issues were actually and necessarily adjudicated or determined by
the arbitrator. The AJ also recommended dismissal of Claim Nos. 3,
4, 5 and 6, finding that these issues were moot because complainant's
dismissal eradicated the effects of the alleged violations and that
there was no reasonable likelihood that the conduct in issue would recur.
The agency declined to adopt these dismissals and instead, after analyzing
Claim Nos. 1 and 3-8 on the merits, concluded that complainant failed
to establish discrimination.
Claim No. 5
In addition to recommending dismissal of this claim as moot, the AJ
also recommended dismissal of Claim No. 5 for failure to state a claim.
The AJ found that complainant was not aggrieved because the Letter of
Caution did not comprise a disciplinary action and was not placed in her
official personnel file. Again, the agency did not adopt this procedural
dismissal, and instead addressed Claim No. 5 on the merits.
Claim No. 9
The AJ recommended dismissal of Claim No. 9, the removal issue, for
lack of jurisdiction, finding that complainant had elected to pursue
relief through the grievance process. The AJ cited EEOC Regulation
37,644, 37,656 (1999) (to be codified and hereinafter referred to as
29 C.F.R. � 1614.107(a)(4): The agency shall dismiss a complaint or
portion of a complaint where the complainant has raised the matter in
a negotiated grievance procedure that permits claims of discrimination
or in an appeal to the Merits System Protection Board and � 1614.301
or � 1614.302. The AJ also found that the doctrine of res judicata and
collateral estoppel indicated that findings appealed and upheld by the
MSPB were final. The agency adopted the dismissal of Claim No. 9.
No Discrimination on the Merits
Claim No. 2
The AJ reached the merits on Claim No. 2. The AJ found that complainant
established a prima facie case of national origin discrimination in that
she is a member of a protected class (Mexican-American), she applied,
was qualified for, and was not selected for the position of GS-7 Legal
Technician and Enforcement Assistant, and similarly situated individuals
not of her protected class were selected.
The AJ went on to find that the agency articulated a legitimate
non-discriminatory reason for complainant's nonselection. Specifically,
the agency stated that the selecting officer, a United States Marshall and
complainant's third-line supervisor (USM: Caucasian, male, no prior EEO
activity) based his decision on the recommendations of the applicants'
supervisors and on the performance evaluations of the applicants for
the period ending March 31, 1990. The recommendations and appraisals
of the three selectees were more favorable than those of complainant
and complainant's supervisor elaborated on the deficiencies mentioned
in complainant's appraisal. Based on these factors, USM determined that
complainant was not the best qualified candidate.
Finally, the AJ found that complainant failed to establish by a
preponderance of the evidence that the reasons articulated by the
agency were a pretext for unlawful discrimination. The AJ noted that
USM promoted a female of Hispanic national origin within three months
of complainant's nonselection and that there was no support for the
claim that complainant's 1990 performance evaluation was intentionally
downgraded.
In conclusion, the AJ found that because complainant failed to make a
showing sufficient to establish the existence of one or more essential
elements of her claim and no genuine issue of material fact existed
regarding the complainant's prima facie case, a decision on the record was
appropriate. The AJ therefore recommended a finding of no discrimination.
The agency adopted the AJ's finding of no discrimination in regard to
Claim No. 2.
Claim Nos. 1 and 3-8
The agency, as noted above, declined to adopt the recommended dismissal
of Claim Nos. 1 and 3-8. In regard to Claim Nos. 1, 3, 6, 7, and 8,
which the AJ dismissed on issue preclusion grounds, the agency found that
the AJ did not give sufficient weight to the pre-arbitration agreement
between complainant and USMS which limited the arbitrator's purview to
complainant's discharge. The arbitrator explained that the parties agreed
that the sole issue before him would be whether there was substantial
evidence that complainant was justifiably discharged for unacceptable
behavior. While the arbitrator admitted that he experienced difficulty
in severing the issues because complainant's representative embedded
complainant's claims of discrimination separate from the discharge issue
into her presentation, the agency found that the arbitrator's opinion did
not indicate that he sought to pass judgement on these issues or attempted
to litigate them completely. The agency found that the record does not
show that these five issues were actually adjudicated by the arbitrator,
or necessary to the arbitration and that the AJ clearly erred when she
recommended dismissal on issue preclusion grounds.
In regard to Claim Nos. 3, 4, 5, and 6, the agency disagreed with the AJ's
finding of mootness, noting that the end of complainant's employment at
USMS did not necessarily extinguish her possible rights to compensatory
damages. Furthermore, the agency concluded that the actions alleged
in each of these claims extended past November 1991, the time when
compensatory damages became available for victims of discrimination.
The agency also noted that "the burden of demonstrating mootness is a
heavy one" and therefore went on to analyze the merits of these claims.
County of Los Angeles v. Davis, 440 U.S. 625, 630 (1979).
Turning first to Claim No. 1, the agency articulated legitimate
nondiscriminatory reasons for its actions. Specifically, the agency
stated that the 1990 fully successful performance appraisal was issued
because complainant's supervisors did not believe she was performing
at a higher level. The agency referred to the affidavits of several
supervisors and coworkers who testified that complainant's work was filled
with errors. The agency also noted that complainant had problems getting
along with others. The agency found that complainant had not provided
any evidence that these reasons were pretextual and concluded that she
had failed to establish discrimination in regard to Claim No. 1.
In regard to Claim No. 3, the agency articulated a legitimate reason
for changing complainant's job assignments frequently, noting that
complainant had difficulty handling her work load and that contract
employees were engaged to perform routine data entry tasks that had
been complainant's at one point. CD noted that other support staff
employees had their duties changed during this period and that there
was a rotation through the receptionist position as part of each support
staffer's responsibilities. The agency found that complainant provided no
evidence that a discriminatory purpose lurked behind the changing of her
job assignments and concluded that she failed to establish discrimination
in regard to this issue.
Claim 4 involves complainant's exclusion from staff and smaller meetings.
Complainant alleged that while general meeting notices were posted,
smaller unit meetings were held in which similarly situated coworkers
participated. The agency first noted that the coworkers referenced by
complainant were not similarly situated to her, in that complainant was
an Administrative Clerk and the coworkers were Seizure and Forfeiture
Specialists with different duties and responsibilities. The agency then
articulated a legitimate nondiscriminatory reason for complainant's
exclusion from the meetings she referenced, noting that they were
meetings with other agencies in which her attendance was unnecessary.
The agency argued that nothing in the record hints that this explanation
is false or a pretext for discrimination.
In regard to Claim No. 5, the Letter of Caution (hereinafter LOC),
the agency found that while it was not placed in complainant's file,
management had discretion to place it in her file, that officials were
free to rely on the contents of the LOC to take future disciplinary
action, and that complainant's supervisors were aware that she had been
issued the LOC for her behavior. Moreover, the LOC included a requirement
that complainant attend a training course. The agency found these facts
sufficient to establish that the LOC was an adverse action and therefore
declined to adopt the AJ's recommended dismissal for failure to state
a claim. Finally, the agency noted that complainant was asserting
that management engaged in a pattern of behavior intending to create
a hostile work environment. The LOC may have been a single point in a
larger pattern of harassment, making dismissal for failure to state a
claim premature.
The agency therefore addressed the claim on the merits. The agency
articulated a legitimate nondiscriminatory reason for issuing the
LOC; namely, that management perceived complainant's behavior towards
co-workers to be inappropriate. Complainant argued that an incident
had occurred involving a co-worker but that it did not threaten to become
physical. The agency found that this argument was misplaced, since the
LOC did not accuse complainant of initiating a physical confrontation.
The agency then noted that complainant did not establish that management's
reason for the LOC was pretext for discrimination.
Turning next to Claim No. 6, complainant asserted that CD sexually
harassed her by staring at her in a "very obvious and degrading manner,"
attempting to rub up against her, following her to the restroom,
criticizing her, and using profane language in her presence. The agency
labeled this a hostile work environment claim and found that the limited
examples of CD's behavior provided by complainant were neither severe nor
pervasive enough to constitute a hostile work environment, or that they
were unsupported by the record. The agency indicated that complainant's
accusations that CD stared at her and rubbed against her were unsupported
by other evidence and that CD indicated he followed her to the restroom
and to check on how long she stayed, in conjunction with a meeting they
were currently having. No support was provided for the claim that CD
unduly criticized her and CD's one cited use of the term "da-- ba---rd"
was "a mere offensive utterance". The agency concluded that the record
did not demonstrate that CD discriminated against complainant at any
time or otherwise sought to create a hostile work environment.
Claim No. 7 involved complainant's claim that she was reassigned to
receptionist duties when management first proposed her discharge in an
effort to degrade her and prevent her from building a stronger EEO case.
The agency articulated a legitimate non-discriminatory reason for the
move. Specifically, the agency noted that it feared complainant would
destroy or sabotage files since she knew that her discharge was upcoming.
The agency found no evidence establishing pretext and concluded that
complainant had not established that she was the victim of discrimination.
The RD construed Claim No. 8 to involve mistreatment and/or harassment by
SD when he failed to provide complainant with instructions and used the
word "p--sed" in front of her when she was serving as a receptionist.
The agency argued that while SD admitted to using the word "p�sed"
he did not intend to embarrass or harass complainant by it. SD also
indicated that he rarely spoke to complainant. The agency found that
the record failed to support complainant's claim of harassment in that
"a mere offensive utterance" is rarely enough to establish harassment
and the record contains no other references to the supervisory deputy's
interaction with complainant.
The agency ended its FAD by addressing complainant's claim that management
engaged in a pattern of behavior intended to discrimination against
her either because she was Mexican-American, a woman, or engaged in
protected EEO activity. The agency found that while complainant cited
numerous incidents which she said were intended to create a hostile work
environment, nothing in the record indicated that management or staff
was motivated to take these actions by complainant's national origin,
sex or EEO complaints.
CONTENTIONS ON APPEAL
On appeal, complainant contends that none of her claims of discrimination
or retaliation should be barred by res judicata or collateral estoppel.
She argues that the arbitrator exceeded his scope of authority when
he considered complainant's removal by delving into the issues of
discrimination and retaliation. She also argues that the selection
process for the GS-7 position was not examined in depth by the arbitrator
and the arbitrator did not make any findings regarding personnel actions
and race, gender and/or retaliation discrimination.
A great deal of complainant's appeal brief focuses on her retaliation
claims and the theory that it was only after she filed an EEO complaint,
that the agency began to document her performance and attitude as
problematic. Complainant argues that the retaliation escalated after
she filed her second EEO complainant in February 1992, and that the
reprisal actions created a hostile work environment.
The agency offers no further contentions on appeal.
ANALYSIS AND FINDINGS
Procedural Dismissals
We first note that the agency correctly adopted the AJ's dismissal of
Claim No. 9, in that the record establishes that complainant grieved
her discharge under the union grievance process on April 24, 1992.
The complaint which listed complainant's discharge as an incident
of discrimination was filed on May 28, 1992. According to Commission
regulations, this behavior indicates that complainant intended to pursue
the non-EEO process in regard to her discharge and she therefore is
precluded from doing so in the EEO process. See 29 C.F.R. � 1614.301(a).
We therefore AFFIRM the agency's dismissal of Claim No. 9.
Moreover, the agency's decision to reach the merits on Claim Nos. 1 and
3-8, rather than adopt the AJ's procedural dismissals of these claims,
was correct, for the reasons stated in the FAD.
No Discrimination on the Merits
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to establish
that she was subjected to discrimination or retaliation on any of the
alleged bases. In so finding, we note that after a thorough review
of the entire record, including complainant's statements on appeal,
we were unable to ascertain any evidence establishing that the reasons
articulated by the agency for the actions it took were pretextual,
or that the true motivation for the agency's actions was discriminatory.
For example, in attempting to establish that the 1990 fully successful
performance rating, the 1990 nonselection, and the frequent changing
of her job assignments were discriminatory, (Claim Nos. 1, 2 and 3)
complainant argued that she performed well at work. She noted that had
worked in the office a long time, had a great deal of government clerical
experience, timely and accurately completed reports, had contact with the
public and was able to use her bilingual skills to provide information,
and entered as many cases into the computer as she could. Numerous agency
witnesses, however, testified that complainant was unable to get along
with her coworkers, was counseled about her high error rate but refused
to address her errors when asked, neglected to relay phone messages
when she was serving as receptionist, and was less than efficient in
performing her job. Complainant offered only her own opinion of her
performance to rebut this testimony.
Complainant's case for discrimination is equally weak in regard to her
other claims, whereas numerous witnesses corroborated the agency's
articulated explanations. Complainant failed to meet her burden of
establishing that these explanations were pretextual. According,
the agency's finding of no discrimination in regard to Claim Nos. 1-5,
7 and 9 is AFFIRMED.
Harassment Claims
Complainant also claimed that she was subjected to a hostile work
environment. She raised a claim against CD specifically, for
sexual harassment between September and October 1991 (Claim No. 6),
and against SD specifically for treating her with disrespect due to
her race/national origin, sex and/or prior EEO activity (Claim No. 8).
She also claimed that she was subjected to a hostile work environment
based on her race/national origin, sex, and/or prior EEO activity when
she was subjected to disrespectful treatment by management and staff.
Turning first to Claim No. 6, in order to establish a claim of sexual
harassment, complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to unwelcome conduct related to her
gender, including sexual advances, requests for favors, or other verbal or
physical conduct of a sexual nature; (3) the harassment complained of was
based on sex; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee,
682 F.2d. 897 (11th Cir. 1982); see also McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc, EEOC Notice No. 915.002 (March 8, 1994).
Complainant failed to establish that she was subjected to unwelcome
conduct related to her gender.
The only evidence in the record as to whether CD stared at complainant
in a degrading manner and attempted to rub against her is complainant's
testimony that he did these things, and CD's testimony that he did not.
Consulting our analysis of complainant's other claims as background
evidence, we find that complainant had many misperceptions about her
environment. She felt that many of the actions management took were
motivated by discrimination and retaliation, yet the evidence establishes
that none of the agency's actions were so motivated. Numerous coworkers
testified that they were afraid to deal with complainant, fearing that she
would take any actions on their part to be discriminatory or harassing.
While complainant also indicated that CD unduly criticized her and yelled
at her in front of coworkers and used profane language in her presence,
she provided no evidence that any criticism she received was related to
her gender. Moreover, no coworker named by complainant as witness to
CD's behavior supported complainant's allegations. As such, we find
that her perceptions of CD's behavior, standing alone, are insufficient
to establish a claim of sexual harassment and we AFFIRM the agency's
finding of no discrimination in regard to this issue.
Complainant alleged that she was treated with disrespect by SD on February
19, 1992, and described several incidents of ongoing "disrespectful"
treatment by management and staff personnel. These claims are most
appropriately analyzed as an overarching allegation of harassment, as
complainant alleged that SD's behavior was but a part of a pattern of
discriminatory and disrespectful treatment she faced after filing her
first EEO complaint in September 1991.
In addition to alleging that SD treated her disrespectfully, as
described above, complainant alleged that management subjected her to
closer scrutiny and had coworkers and others review her work and check
old files to find errors to justify disciplinary action. Complainant
also claimed that her first-line supervisor, AS, threatened her with
civil litigation for a matter raised in complainant's prior complaint.
Complainant further explained this alleged threat in her second affidavit,
alleging that AS was interested in having a sexual relationship with
her and because complainant was not interested, AS made it hard for her
at work. Complainant also named co-workers who gave her problems by
being rude to her and failing to provide her with needed information
about her job. Finally, in her second affidavit, complainant alleged
that management engaged in a pattern of discrimination against her
after she filed her first complaint in September 1991. We interpret
this statement to mean that complainant is alleging harassment based
on all of the issues she described in her second and third complaint,
in addition to those noted specifically above.
After a thorough review of the record, we agree with the agency that
complainant has not established that any of the incidents described in
her complaints were motivated by complainant's protected traits or
prior EEO activity. SD explained that when an employee was engaged
in general receptionist duties, he or she did not receive special
training for specific operations. SD also noted that the word "p--sed"
was part of his normal vocabulary and not meant to harass complainant.
The agency has explained that complainant's work was scrutinized for
errors because of her tendency to make a multitude of errors. Finally,
numerous co-workers testified that complainant was disrespectful, paranoid
and generally hard to work with and that any less than friendly treatment
she received was due to these facts and not complainant's protected
traits or a retaliatory motive. Complainant has provided no evidence
that the behavior she complains of was motivated by her race/national
origin, sex, or prior EEO activity.
Moreover, in regard to complainant's allegations against AS, complainant
offered no evidence, other than her testimony, that AS had made sexual
advances or treated her in a discriminatory way. One of the people
complainant named as a possible witness to incidents between AS and
complainant was interviewed. He stated that he had not observed any
behavior that would be considered sexual harassment. Moreover, while
complainant argued that her rejection of AS's sexual advances caused
AS to make her job more difficult, we have already determined that the
performance appraisal of which complainant complained, the changes in
complainant's job duties, and the various other incidents complainant
cited as discriminatory, were not motivated by discriminatory animus
or retaliation. In sum, we find nothing in the record to support
complainant's claim that she was subjected to sexual harassment or that
it was her rejection of AS's alleged sexual advances that motivated any
of the actions taken in regard to her job.
Accordingly, the agency's finding of no harassment on the basis
of race/national origin, sex, and/or reprisal in regard to all of
complainant's claims is AFFIRMED.
CONCLUSION
This Commission has carefully reviewed the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision. Based on this review, we hereby AFFIRM the
agency's finding of no discrimination in regard to all of complainant's
claims.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Throughout the case file, both complainant and the agency use
"Mexican-American" and "Hispanic" interchangeably, as well as the terms
"national origin" and "race".
2 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 Complainant alleged discrimination on the basis of national origin
for all 9 incidents, but alleged discrimination on the basis of gender
and retaliation only for claim nos. 5-9.
4 The AJ used a letter system to denote the claims and the FAD used
a number system. This decision will use the latter.