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

Equal Employment Opportunity CommissionMar 25, 1999
01972010 (E.E.O.C. Mar. 25, 1999)

01972010

03-25-1999

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


Silvia Valdez v. United States Postal Service

01972010

March 25, 1999

Silvia Valdez, )

Appellant, ) Appeal No. 01972010

) Agency Nos. 4F-945-2959-93

v. ) 4F-945-1032-94

) 4F-945-1222-95

William J. Henderson, ) Hearing Nos. 370-96-X2089

Postmaster General, ) 370-96-X2090

United States Postal Service, ) 370-96-X2320

Agency. )

______________________________)

DECISION

On January 2, 1997, Silvia Valdez (appellant) initiated an appeal to the

Equal Employment Opportunity Commission (Commission) from a final decision

of the United States Postal Service (agency) concerning her complaint

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

The final agency decision was dated December 24, 1996. The appeal is

accepted in accordance with the provisions of EEOC Order No. 960, as

amended.

The issue on appeal is whether appellant proved, by a preponderance of

the evidence, that she was discriminated against on the bases of her

national origin (Hispanic)<1>, age (45), and in reprisal for prior EEO

activity when: 1. a supervisor (S1; Hispanic, age unspecified) gave her

orders in an offensive manner on August 3, 1993; 2. another supervisor

(S2; national origin and age unspecified) yelled at her and mimicked the

way in which she took medication on October 29, 1993; and 3. management

failed to take action when a co-worker (C; Hispanic) yelled at her on

May 4, 1995; threatened her and told a supervisor (S3; national origin

and age unspecified) not to allow her to speak Spanish on the workroom

floor on May 6, 1995; and cursed at her and used an obscene gesture on

June 1 and June 28, 1995.

The record reveals that appellant, a Distribution Clerk, filed three

formal complaints raising the above-referenced allegations. Appellant

asserted that, after she returned to work from a lengthy absence on

August 3, 1993, S1, without introducing herself, ordered appellant to

throw mail.<2> Appellant further indicated that, after she expressed

concerns to S2 about working with a co-worker with whom she had a prior

altercation, S2 called appellant into her office and said "The next time

I give you orders, you better listen to me." (Report of Investigation,

Exhibit 2). Appellant stated that S2 then accused her of not working

and mimicked her by exaggerating the way in which appellant drank while

taking medication. With regard to C's actions, appellant stated that

C yelled "So what" at her on May 4, 1995; made unspecified threats and

told S3 not to allow appellant to speak Spanish on the workroom floor on

May 6, 1995; called appellant lazy and used an obscenity on June 1, 1995;

and used another obscenity and made an obscene gesture on June 28, 1995.

(EEO Counselor's report). Appellant noted that management failed to

discipline C after the incidents.

S1 denied yelling at appellant, stating that appellant was disrespectful

and argumentative after she was instructed to case mail. S1 stated that

appellant told her to "shut up," used an obscenity, pointed her finger

in S1's face, and yelled at S1. (Report of Investigation, Affidavit B).

S2 advised the Investigator that she did not make fun of appellant or yell

at her.<3> S2 stated that she called appellant into her office because

appellant failed to follow instructions. Finally, the Officer in Charge

(Native American) stated that, although he was aware of the June 28,

1995 incident involving C, he did not take action because C's casual

appointment was to expire the following day, and management believed

the problem would then cease. The Officer in Charge indicated that both

appellant and C were given official discussions after the May 4 verbal

altercation.

The agency complied with all procedural and regulatory prerequisites,

and on November 30, 1995, and March 20, 1996, an EEOC Administrative

Judge (AJ) notified the parties of her intent to issue a recommended

decision in the matter without a hearing. After receiving responses from

appellant, the AJ issued a recommended decision finding no discrimination

based upon appellant's national origin, age, and prior EEO activity.

In addition, the AJ determined that appellant had not been subjected to

a continuing pattern of harassment. The AJ, while accepting appellant's

version of the events as being true, found that the incidents were not

sufficiently severe and pervasive to constitute actionable harassment.

The AJ further stated that there was no evidence that the actions were

based upon discriminatory animus.<4> The AJ noted that appellant had

a variety of difficulties with co-workers and management officials of

various diverse backgrounds. Thereafter, the agency issued a final

decision dated December 24, 1996, adopting the AJ's recommended decision

in its entirety. It is from this decision that appellant now appeals.

After a careful review of the record, the Commission finds that the

AJ's recommended decision correctly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. Therefore,

because the agency adopted the AJ's recommended decision, we find no basis

for reversing its finding of no discrimination. Appellant asserted that

the AJ failed to respond to her requests for discovery prior to issuing

a recommended decision, and appellant questioned the credibility of

management officials. The Commission, however, finds that the information

would not be relevant given that the AJ's decision presumes the events

occurred as described by appellant. The AJ correctly determined that

appellant failed to prove, by a preponderance of the evidence that

the actions cited constituted prohibited discrimination or harassment.

Accordingly, it is the decision of the Commission to AFFIRM the agency's

final decision in this matter.

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 (S0993)

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. 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 (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:

March 25, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1While appellant indicated that she was including allegations of race

discrimination, the Commission considers "Hispanic" to be a designation

of national origin.

2While appellant failed to submit affidavits during the investigation

of the first two complaints, the record contains a statement appellant

submitted pursuant to the grievance of the August 1993 incident, as

well as a November 1993 letter she sent to the Postmaster concerning

the October 1993 matter.

3S2 did not submit an affidavit during the investigation of the matter;

however, the Investigator indicated that he spoke to S2 regarding the

issue.

4The AJ properly advised appellant that, to the extent she is attempting

to challenge the agency's policy restricting the speaking of languages

other than English, she must first raise the matter with an EEO Counselor.

While the decision herein makes no findings regarding that allegation,

the Commission notes that English-only policies, when applied at all

times, are presumed to violate Title VII and will be closely scrutinized.

See 29 C.F.R. �1606.7.