Silvia Valdez, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 11, 2000
01a00196 (E.E.O.C. May. 11, 2000)

01a00196

05-11-2000

Silvia Valdez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Silvia Valdez, )

Complainant, )

) Appeal No. 01A00196

v. ) Agency Nos. 4F-945-1262-96

) 4F-945-0103-97

William J. Henderson, ) 4F-945-0050-97

Postmaster General, ) Hearing Nos. 370-97-X2601

United States Postal Service, ) 370-97-X2802

Agency. ) 370-98-X2685

____________________________________)

DECISION

Complainant timely initiated an appeal from two agency final decisions

(FADs), both dated September 9, 1999, concerning her three equal

employment opportunity (EEO) complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the agency's final decisions are AFFIRMED.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as distribution clerk at the Benicia Post Office in Benicia, California.

Believing she was the victim of retaliation and discrimination,

complainant filed formal EEO complaints with the agency on December 9,

1996 and February 3, 1997. In agency case no. 4F-945-1262-96, complainant

claims that she was retaliated against based on prior EEO activity and

discriminated against based on race (Hispanic),

national origin (Hispanic), sex (female), and age (D.O.B. 7/15/51) when:

(1) she was denied overtime on July 27, 1996, and told by the Postmaster

not to call him at home unless it was an emergency;

(2) she was subjected to a hostile work environment;

(3) the agency refused to pay her money to which she believed she was

entitled for time during which she was deemed AWOL;

(4) the Postmaster told her on July 30, 1996, that he was aggravated by

her calling him at home; and

(5) she was issued a seven-day suspension without any prior disciplinary

record.

In agency case no. 4F-945-0050-97,<2> complainant alleges that she was

retaliated against based on prior EEO activity and discriminated against

based on sex (female), race (Hispanic), national origin (Mexican), age

(D.O.B. 7/15/51), and disability (shoulder tendinitis) when:

(6) she was denied overtime;

(7) she was denied overtime on July 27, 1996;

(8) she discovered on July 30, 1996, that other employees were aware

she was being refused overtime;

(9) the agency failed to pay wages to which complainant believed she

was entitled for the January, 1996 pay period;

(10) on July 30, 1996, supervisors refused to provide complainant with

a copy of

her pay stub for the January, 1996, pay period;

(11) the Postmaster admonished her for calling him at home about overtime

assignments, and instructed her to call him only in case of emergency;

(12) her supervisor failed to take action in response to her complaints

of a hostile work environment; and

(13) on October 18, 1996, her supervisor yelled at her for returning

late from a break.

In agency case no. 4F-945-0103-97, complainant alleges that she was

retaliated against based on prior EEO activity and discriminated against

based on race (Hispanic), national origin (Hispanic), sex (female),

and age (D.O.B. 7/15/51) when:

(14) on January 9 and 10, 1997, she was subjected to harassment, including

rude, demeaning treatment by supervisors and managers, and being escorted

from the facility by the police, whom her supervisor called rather than

issue her a written notice to leave the premises.

At the conclusion of the investigations, complainant was provided copies

of the investigative reports, and she requested a hearing before an EEOC

Administrative Judge (AJ) on each complaint. The three complaints were

consolidated for a hearing.

On May 14, 1999, complainant's counsel filed a pre-hearing motion with the

AJ, styled as a "Motion in Limine To Exclude Evidence and Testimony and

for Sanctions Because Agency Failed to Respond to Discovery and Orders

of the Commission." In the motion, complainant identified numerous

documents which the agency allegedly failed to include in the Records of

Investigation (ROIs), or to produce in response to requests for documents

propounded by complainant. As relief, the complainant sought: (1) to

bar the agency from offering testimonial or documentary evidence at the

hearing which exceeded the scope of those affidavits and documents which

the agency had actually produced; and (2) to draw adverse inferences in

favor of complainant with respect to those documents which the agency

allegedly withheld. The agency failed to respond to the motion.

By order entered June 30, 1999, the AJ denied the motion, but ruled

that the agency was precluded from introducing as hearing exhibits any

documents not produced by one week prior to the hearing date.

At the hearing on July 12, 1999, when called upon to make her

opening statement, complainant's counsel did not address the merits of

complainant's claims, but instead stated the AJ had improperly denied her

motion in limine because there were documents solely within the agency's

control which the agency had failed to produce, thereby prejudicing

complainant's ability to prove her claims. Complainant's counsel further

stated that immediately prior to commencing the hearing, the AJ had

ruled in an off-the-record conference that complainant would not be

permitted to question witnesses regarding allegedly missing discovery.

Hearing Transcript (HT) at 7. Complainant's counsel offered a proffer

that the questions she would have asked witnesses, upon directing

their attention to complainant's documents and discovery requests,

were as follows: (1) whether the witness had had the opportunity to

see complainant's documents and discovery requests prior to the hearing;

(2) what did the witness do to comply with the discovery requests; (3)

was the witness given any instructions about the requests, and if so,

by whom; and (4) (if the witness was not given the requests before) upon

reviewing the requests now, does the witness have any of the documents

or any of the information requested, including any personal notes or

"day-timer" notes? HT at 7-9. Following the agency's opening statement,

complainant's counsel advised the AJ that because the agency had indicated

it would not stipulate that complainant had established a prima facie case

of retaliation and discrimination, complainant was going to "withdraw

our request for a hearing and ask for a final agency decision for court."

HT at 12.<3> Complainant's counsel explained to the AJ that the reason

for the withdrawal was the inadequacy of the ROIs, which did not contain

allegedly relevant documents such as meeting notes from 1994 forward

addressing working conditions in complainant's office. At complainant's

counsel's request, complainant then took the witness stand and testified

that she understood she was waiving her right to a hearing. The AJ then

stated that she wished "to clarify you are withdrawing without prejudice,

so you can � if you want to � if you change your mind . . . as we walk

out the door and you want to continue with the hearing at some point,

I'd be willing to entertain that, unless you have definitely decided

that you want to just have a final agency decision." HT at 16. However,

in response, complainant's counsel stated in part:

Part of my appeal will be the denial of discovery and how it impacts

the way the hearing is conducted . . . this request for a final agency

decision is the only interim appeal process I have. We are withdrawing

because . . . we can't go forward with the file[] the way it is.

HT at 17. Complainant's counsel added "you understand that it is my intent

to get the Commission to order this case remanded for proper processing."

HT at 19. Complainant did not seek at any time thereafter to have her

request for hearing reinstated.

By two FADs, both dated September 9, 1999 (FAD #1 and FAD #2), the agency

found no discrimination with respect to each of complainant's claims.

On appeal, complainant contends that the AJ erred in not compelling

the agency to produce the allegedly missing documents and interrogatory

answers identified in complainant's motion in limine, or alternatively

granting the adverse inferences requested in the motion. Complainant also

contends that the FADs erred in finding no discrimination.

ANALYSIS

Discovery and Evidentiary Rulings

As noted above, complainant's motion in limine did not request that the

agency be compelled to produce the referenced documents. Rather, as

plainly stated in the motion, complainant sought to preclude introduction

of documents not previously produced, or testimony based on same, and to

obtain an adverse inference based on the issues to which the unproduced

documents related. Moreover, in complainant's appellate brief, she

again specifies that the "motion sought to prevent the agency from

benefitting from its failure to produce adequate information and sought

adverse inferences to fill in the gaps of the investigation created by

the agency's withholding of information." Complainant's Brief at 3.

Accordingly, we do not find that the AJ erred in failing to compel the

agency to produce the identified documents. It was within the AJ's

discretion whether or not to grant the pre-hearing adverse inferences

on material issues which complainant sought. Had complainant proceeded

with the hearing, complainant could have argued based on whatever missing

evidence there was that the requested adverse inferences were appropriate,

and the AJ would have been able to consider the matter on the full record

following the hearing before rendering a decision.

Similarly, with respect to the AJ's ruling on cross-examination of

witnesses about their failure to produce documents in response to

complainant's discovery requests, complainant could have noted her

objection on the record, together with a proffer of the questions

which she would have asked if permitted, and proceeded with the hearing.

To the extent complainant contends the agency erred in failing to include

all of complainant's witness statements and documents in the ROIs, and

in failing to obtain statements from some of the witnesses identified

by complainant during the EEO investigation, we note that complainant

was not precluded from following appropriate procedures to introduce

these documents as her own hearing exhibits or to call the relevant

witnesses at the hearing.<4> Regarding any alleged omissions in the

ROIs or the agency's theory of the case as presented at the hearing,

complainant would have remained free to present whatever argument she

deemed appropriate as to the weight of the evidence based on all exhibits,

not merely the ROIs. On appeal, the Commission would still have been

able to review the record for any alleged error by the AJ, and remanded

for a supplemental hearing if deemed necessary. We further note that

complainant has obtained statements from the witnesses in question, and

introduced them into the record before withdrawing her hearing request.

Complainant cannot evade the prohibition on interlocutory appeals

from AJ discovery rulings by seeking to withdraw her hearing request

in order to obtain appellate review of a FAD only for purposes of

obtaining a reversal of the discovery rulings and remand for a hearing.

Complainant has waived her right to a hearing, and we now review the

FADs on the merits of complainant's claims.

Disparate Treatment and Harassment

Although FAD #1 analyzed several of the incidents at issue as raising

a hostile work environment harassment claim, the remainder of both

FADs erroneously analyzed each alleged discriminatory or retaliatory

incident as a distinct claim of disparate treatment, rather than also

viewing all of the referenced incidents cumulatively to determine if they

constitute harassment based on a hostile work environment as complainant

contends.<5> Inasmuch as the agency's error in this regard was addressed

in our prior decision on these complaints, see Valdez v. United States

Postal Service, EEOC Appeal No. 01973742 (February 6, 1998), and not

corrected on remand, the agency is urged to review with its EEO personnel

how to avoid fragmentation of claims. See Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at 5-5 - 5-6

(November 9, 1999).

1. Overtime

As to incidents (1), (6), and (7) referenced above (denial of request

to work overtime), FAD #1 concluded that complainant was not on the

overtime desired list and was not needed for overtime work. On appeal,

complainant contends that the agency failed to produce, either as part

of the ROIs or in response to discovery requests, the overtime-desired

list (ODL) covering July 27-30, 1996. While complainant concedes in her

investigative affidavit that she did not sign up for the ODL covering

July 27, she contends that the list is an important piece of evidence

which would show that many of the employees who were permitted to work

overtime on that day were also not on the ODL. The agency's proffered

legitimate non-discriminatory reason for denying complainant overtime

is that awarding overtime to an employee who was not on the ODL would

have required approving a different status for employees who were on the

ODL, pursuant to certain collective bargaining agreement provisions.<6>

Complainant contends that this is pretextual, as evidenced by wage records

indicating that numerous employees were paid for overtime work during the

week in question, and complainant surmises that they could not all have

been on the ODL since there were only several names on the ODL for the

first and fourth quarters of that year. Complainant therefore contends

that the agency's failure to produce the overtime list applying to July

27, and documents indicating which employees did work overtime during

the week of July 27, warrants an adverse inference of discrimination

or retaliation.

Notwithstanding the absence of the relevant ODL list in the record,

we conclude that the complainant has not established that the

proffered reason for denial of her overtime request was a pretext for

retaliation or discrimination. In reaching this conclusion, we note

that in complainant's own affidavit, she attests that the supervisor in

question initially told her that since she had placed her name on an ODL

at the beginning of the quarter, she could have overtime even though

she was not on the most recent ODL. She further asserts that he then

came back to her and said that she could not have overtime. This is

consistent with the supervisor's version of events. According to the

supervisor, he initially told complainant she could have overtime, but

after consulting with the union representative, the supervisor advised

her, with the union representative present, that granting complainant

overtime in these circumstances would in their view raise a potential

violation of the collective bargaining agreement. Complainant does not

contend that the union representative was motivated by discriminatory

or retaliatory animus, and does not dispute her supervisor's assertion

regarding the union representative's interpretation of the referenced

collective bargaining agreement provision.<7>

2. Absence without leave

With respect to incident (3), FAD #1 concluded that complainant was

absent without leave (AWOL) when she left without permission on July

30, 1996, and did not provide medical documentation to substantiate

use of sick leave for her continued absence through August 3, 1996.

With respect to incident (5), FAD #1 concluded that complainant was

legitimately issued a seven-day suspension for (a) failure to discharge

duties on July 30, 1996, when she ended her tour without permission, (b)

failure to follow instructions on July 30, 1996 when she was instructed

to return to work and instead clocked out and left the facility, and

(c) being AWOL, when complainant left the facility without the knowledge

or permission of a supervisor. On appeal, complainant cites to hearing

exhibit #26, which she contends is sufficient medical documentation to

warrant approval of sick leave for this period. However, exhibit #26

is a "visit verification" issued by Kaiser Permanente which states that

complainant had a medical appointment on July 31, 1996, and could return

to her full duties with no restrictions on August 1, 1996, and therefore

does not provide medical justification for complainant's absence from

July 30 through August 3.

3. Telephone calls to Postmaster

With respect to incidents (1), (4) and (11), FAD #1 concluded that

the Postmaster properly asked complainant not to call him at home

about non-emergency matters. Although complainant's counsel argues

on appeal that the denial of the overtime she requested constituted an

emergency which warranted calling the Postmaster at home, we disagree.

While counsel contends that the improper denial of overtime could never

be remedied, and thus required immediate intervention, in fact if it had

been concluded that complainant was improperly denied overtime she could

have been awarded an appropriate remedy, including back pay, through a

grievance or EEO proceeding. Thus we do not find that the Postmaster's

instruction to complainant was motivated by discriminatory or retaliatory

animus.

4. Wages and pay stub

With respect to incidents (9) and (10), FAD #1 concluded that complainant

failed to provide any specific information in support of the contention

that she was denied a portion of her January, 1996 wages or her pay stub.

On appeal, complainant contends that the agency's failure to produce

the wage information as part of its ROI warrants drawing an adverse

inference of retaliatory or discriminatory motive. Based on our review

of the EEO Counselor's Report, complaint, and complainant's affidavit,

we conclude that complainant has not provided sufficient information

regarding the allegedly missing wages, and further has not demonstrated

any connection to a discriminatory or retaliatory motive.

5. Lunch schedule and clocking out

With respect to incident (14), FAD #2 found that complainant's supervisor

did instruct her to clock out for lunch on time. FAD #2 found that the

comparison male employee identified by complainant was not similarly

situated to her because he did not have a set lunch schedule, whereas

complainant did. On appeal, complainant contends that the agency's

finding of the absence of a similarly situated comparator demonstrates

that complainant was the only employee with a set lunch schedule.

However, complainant's supervisor attests that at that time, all

the machine operators with a bid, and the bulk mail clerks, had set

lunch schedules, whereas complainant's cited comparator is one of the

few individuals who at that time did not have set lunch schedules.

Moreover, in her January 17, 1997 memorandum regarding this matter,

complainant asserted that when she confronted her supervisor about

why she had yelled at complainant about her lunch schedule and not

the comparator, the supervisor stated that it was because complainant

"never even talked to her" and also because the comparator "did the

work of three people." We note that this discussion as recounted by

complainant supports her supervisor's contention that her treatment of

complainant was not attributable to discrimination or retaliation.

6. Removal from premises

FAD #2 further found that when complainant failed to follow a direct

order to leave the premises, she was put off the clock by her supervisor

but still refused to leave the building, and thereafter the supervisor

called the police to escort complainant off the premises. FAD #2 also

found that complainant was not entitled to receive a written instruction

to leave the building, which complainant claims she sought in order to

protect herself against later being charged AWOL. On appeal, complainant

contends that the agency ignored the statements of various witnesses

who assert that complainant's supervisor summoned her in a rude manner.

See, e.g., ROI Exhibit 3 at 5 (witness states that supervisor's tone

was rude when she summoned complainant). However, the evidence is

disputed regarding whether complainant improperly refused to meet with

her supervisor, or to leave the premises when thereafter instructed,

triggering the events at issue. See, e.g., ROI Exhibit 2 at 4 (shop

steward states he advised complainant she should meet with her supervisor

as requested or else she risked being charged with insubordination);

Affidavit B (supervisor attests she followed instructions from labor

relations representative to call police if complainant would still not

comply with the direct order to meet with her following re-issuance

of the order in front of another supervisor and then in front of the

shop steward, issuance of a verbal warning that failure to comply would

result in being placed off the clock and suspension, and complainant's

continued refusal to leave the premises when thereafter ordered to

do so). Weighing this testimony regarding the events in question,

we do not find complainant established that, more likely than not,

the challenged actions were motivated by discrimination or retaliation.

7. Additional alleged incidents of harassment

Finally, with respect to incidents (2) and (12), FAD #1 summarily

concluded that complainant had not established she was subjected to

a hostile work environment based on the incidents at issue. The FAD

stated that complainant's hostile work environment claim was based on

the following alleged incidents: (1) on October 14, 1996, her supervisor

yelled at her while she was eating lunch, stating "[i]f you can't work

and talk at the same time don't talk"; (2) on an unspecified date, her

supervisor singled complainant out for using a photocopy machine and said

"look at the sign; don't you know how to read"; (3) on an unspecified

date, S1 came up to complainant while she was on the phone and told

her that she should not be calling anyone. We note that incident (13),

complainant's contention that her supervisor yelled at her for returning

late from a break, is similarly part of her harassment claim, as are

all of the other incidents referenced above, as well as complainant's

contention that the Postmaster gave preferential treatment to the acting

supervisor by selecting her for temporary supervisory duties and by

permitting her to disregard various rules. FAD #1 summarily concluded

that complainant"was not subjected to a hostile work environment and was

not yelled at by her supervisors." Complainant contends that the agency

disregarded witness statements indicating that she was in fact yelled

at by her supervisor as alleged. Based on our review of the record,

weighing the conflicting factual accounts provided by complainant, the

co-worker witnesses, and the various supervisors at issue, we conclude

complainant has failed to demonstrate that, more likely than not,

the actions at issue were motivated by discrimination or retaliation.

Accordingly, whether viewed as incidents of disparate treatment or as

a pattern of harassment, we find that complainant has not proven by a

preponderance of the evidence that the harassment of which she complains

was motivated by her race, national origin, sex, age, disability, or

in reprisal for prior EEO activity. See Dalton v. United States Postal

Service, EEOC Request No. 05940458 (March 9, 1995).<8>

We note, however, that complainant's contention in her investigative

affidavit that she was subjected to discrimination based on her national

origin is based in part on the assertion that she was discriminated

against because of her Hispanic accent, and this was not specifically

addressed in the FAD. Complainant contends that: "[the] Postmaster,

supervisor [], and acting supervisor need to understand that we are there

to do a job and just because some of us have a heavy accent, might not

understand exactly what they want the first time around, and are older

females who they feel can be intimidated, [they] have no right to treat

us differently." ROI at A-7. Complainant's investigative affidavit does

not elaborate on the basis for this contention. Id. The Postmaster

responded to complainant's contention as follows: "[complainant]

does have an accent but I do not have any trouble understanding her."

ROI at B-4. The referenced supervisor, who identifies himself as being

of Mexican-American descent, responded in his affidavit as follows:

"[complainant] does indeed have an accent, but being of Mexican origin, it

is really not that noticeable to me." ROI at C-2. The referenced acting

supervisor, who also identifies herself as being of Mexican American

descent, did not specifically address this contention in her affidavit.

We note that complainant's hearing exhibits included a memorandum

dated July 8, 1993 from a Plant Manager at the agency's San Francisco

facility which asserted that English is the "official business language

of the USPS and the San Francisco PD&C" for manager-to-manager and

manager-to-subordinate communications, and that "[c]ommunicating in

languages other than English often makes us 'English Only' people

feel left out (. . . and it's only human at times for us to wonder

'are they talking about us?')." Complainant's Hearing Exhibits at 425.

Complainant, however, has presented no evidence or argument regarding the

significance of this document relative to the instant national origin

discrimination claim, and not demonstrated any connection between the

individual plant manager who issued this memorandum at another facility

in a different city and the management officials whom she has named as

responsible for the harassment she challenges at the Benicia, California

facility. Moreover, complainant has produced no evidence to indicate

that, in denying overtime or taking the other actions she challenges,

her own supervisors here at issue discriminated against her based on

her having an accent or speaking Spanish.<9>

Denial of Reasonable Accommodation

In addition to alleging disparate treatment and harassment based on

disability as addressed above, complainant contended in her investigative

affidavit that the agency denied requested accommodations of her physical

disability (shoulder tendinitis) by violating restrictions memorialized

in her limited duty job offers. The FAD does not address this claim.

As a threshold matter, complainant must establish that she is a �qualified

individual with disability� within the meaning of the Rehabilitation Act.

29 C.F.R. �� 1630.2(g) and (m).<10> However, in the instant case, we

need not reach the issue of whether or not complainant is a qualified

individual with a disability within the meaning of the Rehabilitation

Act because even assuming arguendo that she is, she has failed to prove

that she was denied her requested reasonable accommodations. Complainant

asserts that management required her to exceed her lifting and reaching

restrictions by lifting certain cases of mail and by cleaning certain

machinery, and that she was forced to bid on another assignment due to her

light duty status. ROI Affidavit A and Exhibit 6b at 5. By contrast,

management contends that her restrictions were always honored, that her

bid was modified together with those of the other distribution clerks

to include certain additional duties. See, e.g., ROI Affidavit B-4.

The various witness statements in the record do not address this issue.

Further, the Postmaster denies complainant's assertion that the agency

generally takes the position that only "100% healthy" people are eligible

for distribution clerk positions. Accordingly, weighing this evidence,

we find that complainant has failed to prove by a preponderance of the

evidence that she was required to work outside of her restrictions.<11>

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the agency's

final decisions.

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).

COMPLAINANTS' 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:

May 11, 2000

_______________ _____________________

Date Frances M. Hart

Executive Officer

Executive SecretariatCERTIFICATE OF

MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Opportunity Assistant

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 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.

2This complaint was originally dismissed by the agency. The Commission

vacated the dismissal and remanded the complaint for processing.

See Valdez v. United States Postal Service, EEOC Appeal No. 01973742

(February 6, 1998).

3Prior to withdrawing the hearing request, complainant's counsel requested

that the AJ attach all of complainant's proposed hearing exhibits to

the hearing transcript, and the AJ granted this request. Complainant's

counsel states that the exhibits contain numerous relevant documents

and witness statements which the agency failed to include in the ROIs.

4We note that although complainant argues on appeal that there are

numerous relevant witnesses from whom the EEO investigator failed to

obtain a statement, only a few of those witnesses were actually included

by complainant on her witness list.

5In order to prevail on a claim of harassment based on race, national

origin, sex, reprisal, or disability, complainant must demonstrate that:

(1) she was subjected to harassment that was sufficiently severe or

pervasive to alter the conditions of employment and create an abusive or

hostile environment; and (2) the harassment was based on her membership

in a protected class, i.e., based on an impermissible factor such as

her race, national origin, sex, age, disability or reprisal. Cromar

v. Department of Justice, EEOC Appeal No. 01951366 (January 23, 1998);

see also Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997).

6Specifically, the supervisor who denied complainant overtime attested

that he and the shop steward explained to complainant that to place

her on overtime, notwithstanding that she was not on the ODL, "would

necessitate working 'V' time for the people on the ODL, and I would not

authorize that, so due to that reason it would be contractually incorrect

to allow her to work ...." ROI 4F-945-1262-96 at Affidavit C-2.

7With respect to incident (8), FAD #1 concluded that complainant failed

to state a claim under Title VII, finding that overtime desired lists

may be viewed by other employees, and also employees may simply observe

who is working overtime and who is not. Even if this incident is viewed

as part of complainant's harassment claim, we find that complainant has

failed to establish any discriminatory or retaliatory motive.

8We note with respect to complainant's claims of retaliatory disparate

treatment or harassment, the Commission interprets the statutory

retaliation clauses "to prohibit any adverse treatment that is based on

a retaliatory motive and is reasonably likely to deter the charging party

or others from engaging in protected activity." EEOC Compliance Manual,

Section 8 (Retaliation) at 8-13 - 8-14 (May 20, 1998). Where reprisal

is the basis for a Title VII claim, an complainant may establish a

prima facie case of discrimination by showing: (1) that he engaged in

prior protected activity; (2) that an official named in the complaint

knew of that activity; (3) that he was disadvantaged by an action of

the employer subsequent to or contemporaneous with such opposition and

participation; and (4) that the protected activity and the adverse action

were sufficiently close in time to permit an inference of retaliatory

motive. Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318, 324 (D. Mass.) aff'd, 545 F.2d 222 (1st Cir. 1976).

Complainant has demonstrated that she engaged in prior EEO activity of

which her supervisors were aware, occurring throughout a time period

of several years preceding the incidents here at issue, and subject to

publicity. See, e.g., Complainant's Hearing Exhibits at 444. However,

even assuming complainant established a prima facie case of retaliation,

we nonetheless conclude for the reasons stated elsewhere in this decision

that complainant has failed to prove that, more likely than not, the

agency's actions were motivated by reprisal.

9Discrimination based on accent and discriminatory English-only policies

are two legally distinct types of national origin discrimination,

although we recognize that the two may interrelate in particular cases.

We note that in a previously-filed complaint, complainant alleged that

on May 6, 1995, she was harassed when a co-worker told a supervisor

not to allow complainant to speak Spanish on the workroom floor.

See Valdez v. United States Postal Service, EEOC Appeal No. 01972010

(March 25, 1999); ROI Exhibit 10E. In that case, the EEOC AJ noted

that to the extent complainant was also seeking to challenge the

agency's English-only policy itself, that issue was not presented, but

complainant could initiate EEO counseling to raise such a challenge.

While the Commission's decision on appeal affirmed the AJ's findings

and conclusions, the Commission nonetheless instructed the agency that

"English-only policies, when applied at all times, are presumed to

violate Title VII and will be closely scrutinized." Valdez v. United

States Postal Service, EEOC Appeal No. 01972010 at n.4 (March 25, 1999)

(citing 29 C.F.R. � 1606.7). While complainant has not raised such a

claim in the instant case, we nevertheless note that the above-referenced

July 8, 1993 memorandum by the San Francisco facility plant manager

purports to announce a presumptively invalid English-only policy for

that facility. Although that policy is not before us in this case,

we hereby urge the agency to ensure, via internal assessment, training

and other appropriate methods, that none of its facilities maintain,

in policy or practice, an English-only rule which violates Title VII.

See 29 C.F.R. � 1606.7(b) (a rule requiring that employees speak only

in English at certain times must be justified by business necessity);

EEOC Compliance Manual, Section 623 ("Speak-English-Only Rules"); Garza

v. Department of the Army, EEOC Appeal No. 01924360 (October 1, 1993)

("[m]anagement's requirement that English be spoken in the conduct of all

business . . ., even during communications between two foreign language

speakers, was too broadly drawn to shield the agency from liability");

compare Daly v. United States Postal Service, EEOC Appeal No. 01933547

(September 14, 1995) (analyzing claim of national origin discrimination

based on accent).

10The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

11 On appeal, complainant additionally contends that the agency

either failed to accommodate her, or subjected her to a hostile work

environment because of, her mental disability ("generalized anxiety and

depressive disorders"). Complainant's Brief at 22. The record reflects

that subsequent to the events here at issue, complainant's claim for

worker's compensation based on her anxiety and depression diagnoses was

approved, based upon the conclusion that these conditions resulted from

a 1993 physical assault on complainant by a co-worker. However, in her

formal complaints and investigative affidavits, complainant only raised

her depression and anxiety as claimed damages allegedly caused by the

agency's actions, not as a basis for the alleged discrimination. Indeed,

when the Administrative Judge announced the issues presented in the case

for hearing, she identified complainant's physical disability claim,

but no mental disability claim, and there was no objection by counsel.

HT at 3-4. To allow complainant to raise a basis not presented to the

agency at some point prior to its final determination would thwart the

investigative process. Absent a compelling reason, an complainant may

not add a new basis on appeal. Wodjak v. Department of the Treasury,

EEOC Appeal No. 01952440 (March 27, 1997). Complainant has presented no

such reason.