Sylvia A. Vargas, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionMay 2, 2000
01996332 (E.E.O.C. May. 2, 2000)

01996332

05-02-2000

Sylvia A. Vargas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Sylvia A. Vargas, )

Complainant, )

) Appeal No. 01996332

v. )

) Agency No. 4-G-770-0459-98

William J. Henderson, )

Postmaster General, ) Hearing No. 330-98-8231X

United States Postal Service, )

(S.E./S.W. Region), )

Agency. )

______________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint 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.<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). Complainant alleges she was discriminated against

on the bases of national origin (Mexican/American), race (Caucasian),

and sex (female) when she was terminated during her probationary period

for unsatisfactory attendance.

The record reveals that complainant, a Part-Time Flexible Letter Carrier

at the agency's Irvington Station in Houston, Texas, filed a formal EEO

complaint on April 13, 1998, alleging that the agency had discriminated

against her as referenced above. At the conclusion of the investigation,

complainant was provided a copy of the investigative report and requested

a hearing before an EEOC Administrative Judge (AJ). Following a hearing,

the AJ issued a recommended decision (RD) finding discrimination.

The AJ concluded that complainant established a prima facie case of

national origin discrimination<2> because non-Hispanic employees with

similar attendance records were not terminated during their probationary

period. However, the AJ concluded that complainant failed to establish

a prima facie case of sex discrimination because similarly situated

comparison employees were also females. The AJ then concluded that

the agency articulated a legitimate, nondiscriminatory reason for its

action, namely, that complainant's many unscheduled absences during her

probationary period caused the termination.

In her pretext analysis, the AJ found that complainant demonstrated

that the agency's articulated reason was not credible and a mere mask

for national origin discrimination. In reaching this conclusion,

the AJ noted the management officials in question and the similarly

situated comparators were all Black. The AJ also noted that complainant

had missed four days of work during her 90-day probationary period.

The first unexcused absence involved complainant being sent home for the

day by management due to back pain. On the next day, after complainant

telephoned her supervisor requesting sick leave due to back pain, she

accrued her second unexcused absence. The third absence occurred when

complainant was sent home for the day because of �pinkeye.� The fourth

and final absence occurred when complainant requested sick leave to take

her daughter to the emergency room. The AJ found that the similarly

situated Black probationary employees had similar attendance records to

complainant, but that when these individuals were unable to report to

work, their schedules were revised so that the day missed from work became

a non-scheduled day off and thus not considered an unexcused absence.

The AJ further noted that on two of the four days in question, complainant

actually came to work but was sent home due to an illness. In light of

the disparate treatment of complainant regarding the unexcused absences

and other evidence concerning the relations between the Black managers

and Hispanic employees at the facility, the AJ found that the agency

had discriminated against complainant based on her national origin.

In its FAD, the agency adopted the AJ's finding of no sex discrimination,

but rejected her finding of discrimination based on national origin.

The agency found that the testimony of complainant's witnesses regarding

the disparate treatment of Hispanic employees less than credible

and that the evidence as a whole did not support the AJ's finding

of discrimination. On appeal, complainant offers no new contentions,

and the agency requests that we affirm the FAD.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ will be

upheld if supported by substantial evidence in the record. Substantial

evidence is defined as �such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.� Universal Camera

Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb the

AJ's decision. In this regard, we find that the AJ's factual findings are

support by substantial evidence in the record. The record indicates that

while complainant was charged an unexcused absence when she was unable

to work, non-Hispanic employees were able to revise their schedules to

avoid being charged an unexcused absence. We note that even though

another Hispanic employee successfully completed the probationary

period, the record is unclear as to whether this employee was allowed

to change her leave to avoid unexcused absences in a similar manner to

the non-Hispanic employees. Additionally, we agree with the AJ that

the evidence did support a finding of sex discrimination, in that there

was no evidence indicating that the agency's actions were motivated by

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

including the statements on appeal and arguments and evidence not

specifically discussed in this decision, the Commission REVERSES the

agency's final decision and REMANDS the matter to the agency to take

remedial actions in accordance with this decision and the ORDER below.

ORDER (D1199)

The agency is ORDERED to take the following remedial action:

1. Within thirty (30) days from the date this decision becomes final, the

agency shall offer complainant the position she would have obtained had

she completed her probationary period. The agency shall allow complainant

thirty days (30) from the date of the offer to decide whether to accept

the position. The agency shall also expunge all negative information

regarding her attendance from her personnel records and award her the

seniority and other employee benefits she would have attained had she

completed her probationary period.

2. The agency shall determine the appropriate amount of back pay

(with interest, if applicable) and other benefits due complainant,

pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar

days after the date this decision becomes final. The complainant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due, and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the complainant

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

3. The agency is directed to conduct training for the managers responsible

for complainant's termination. The agency shall address this employee's

responsibility with respect to eliminating discrimination in the workplace

and all other supervisory and managerial responsibilities under equal

employment opportunity law.

4. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Irvington Station facility copies

of the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (S0400)

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 2, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2 The AJ merged complainant's race/color basis into her national origin

claim.