Sandra L. Cosio, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01973513 (E.E.O.C. Mar. 24, 2000)

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.