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.