01980929
10-30-1998
Javier R. Viramontes Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Javier R. Viramontes v. United States Postal Service
01980929
October 30, 1998
Javier R. Viramontes )
Appellant, )
)
v. ) Appeal No. 01980929
) Agency No. 4E-870-1088-95
William J. Henderson, ) Hearing No. 350-96-8032X
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On November 7, 1997, Javier R. Viramontes (appellant) timely appealed
the final decision of the United States Postal Service (agency), dated
October 24, 1997, concluding he had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. In his complaint,
appellant alleged that officials at the agency's Las Cruces, New Mexico,
Post Office discriminated against him on the bases of his national origin
(Hispanic), sex (male) and/or age (DOB: 6/14/46) when he was terminated
from employment as a casual mailhandler on February 17, 1995. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
The record establishes that appellant was hired by the Las Cruces Post
Office as a casual employee on December 3, 1994. Despite management's
statements in affidavits that appellant was hired only for the Christmas
season, his official personnel records indicate that his temporary
appointment was scheduled to expire on November 26, 1995. However,
appellant was terminated from his casual appointment on February 17,
1995.<1> Two other casuals hired around the same time as appellant
(Hispanic male, age 49, and black male, age 35) were not terminated.
Agency witnesses stated that appellant was terminated because the
Postmaster was informed that he had more casual employees than he had
permission to employ and had to terminate one of them. The Postmaster
said he chose appellant because his supervisor did not recommend him
for retention. The record contains no explanation for why the supervisor
chose to retain the other two casuals rather than appellant. In addition,
appellant pointed to another employee on a temporary appointment (female,
age 32), who appellant asserted was also retained despite an on-the-job
injury and placement in limited duty status.
On April 7, 1995, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On August 21, 1995, the AJ issued a decision without a hearing, finding
appellant had been discriminated against by the agency. In reaching this
conclusion, the AJ noted that, after its motion for a continuance was
denied, the agency refused to appear at the hearing, present evidence
or arrange for a room for the hearing. The AJ provided the agency with
an opportunity to show cause why sanctions should not be imposed for
its actions in this matter. After considering the agency's response,
the AJ drew an adverse inference against the agency and concluded
that appellant would have been able to establish a prima facie case of
discrimination if he had been permitted to testify, present evidence,
and cross-examine witnesses at the hearing. The AJ went on to find that
the agency failed to rebut this inference of discrimination because it
offered no explanation for why appellant was chosen to be the employee
who was terminated. Therefore, the AJ concluded that appellant had
sustained his burden of proving discrimination occurred in this matter.
On October 24, 1997, the agency issued its final decision, rejecting the
AJ's recommended decision, and entering a finding of no discrimination.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis
to disturb the AJ's finding of discrimination. Despite the agency's
arguments to the contrary, the Commission is unpersuaded that the AJ
abused her discretion in denying the agency's motion for a continuance
and in imposing sanctions when the agency refused to participate in
the hearing. The Commission concurs with the AJ's conclusion that the
agency failed to offer any legitimate explanation for why appellant was
the casual employee chosen to be terminated. Therefore, the inference of
discrimination raised by appellant's prima facie case remains unrebutted
and is sufficient to sustain appellant's burden of proving discrimination
occurred.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of discrimination. In order to remedy appellant for its
discriminatory actions, the agency shall, comply with the following
Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within sixty (60) calendar days of the date this decision
becomes final, the agency is directed to award appellant backpay,
with interest, for all wages and benefits lost between the date of
his termination on February 17, 1995, and the expected expiration
date of his casual appointment on November 26, 1995. The agency
shall determine the appropriate amount of backpay, interest and
other benefits due appellant, pursuant to 29 C.F.R. � 1614.501.
The backpay award shall be offset against any workers' compensation
benefits appellant received during this period. The appellant shall
cooperate in the agency's efforts to compute the amount of backpay
and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount
of backpay and/or benefits, the agency shall issue a check to the
appellant for the undisputed amount within sixty (60) calendar days of
the date the agency determines the amount it believes to be due. The
appellant 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."
(B) Training shall be provided to the managers responsible for the
agency's actions in this matter on the obligations and duties imposed
by the Federal employment discrimination laws.
(C) The agency shall post at the Las Cruces, New Mexico, Post Office
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.
(D) 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 backpay and other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS DAYS of the date you filed your complaint with the agency,
or filed your appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct 30, 1998
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq., has occurred at
this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Las Cruces, New Mexico, Post Office supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Las Cruces, New Mexico, Post Office has been found to have
discriminated against the individual affected by the Commission's
finding on the bases of his national origin, sex and age when he was
terminated from his casual position. The Commission has ordered that
this individual be provided with an appropriate backpay award. The Las
Cruces, New Mexico, Post Office will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The Las Cruces, New Mexico, Post Office will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
____________________
Date Posted: _____________________
Posting Expires: _________________
1 Management witnesses stated that appellant was retained after the
Christmas season because he was recovering from an on-the-job injury
sustained on December 30, 1994.