01a10091
03-06-2003
Gladys Alvarez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Gladys Alvarez v. Department of Veterans Affairs
01A10091
3/6/03
.
Gladys Alvarez,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10091
Agency No. 98-1108
Hearing No. 160-99-8096X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), 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 appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that complainant, a Personnel Specialist at the
agency's New York, New York facility, filed a formal EEO complaint on
March 25, 1998, alleging that the agency had discriminated against her
on the bases of race (Hispanic), national origin (Puerto Rican), and age
(D.O.B. 7/21/45) when she was not selected for the position of Employee
Relations Specialist.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination on all bases because the selectee for the position was not
in complainant's protected classes. The AJ further concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that the selecting official and panel members collectively
testified that complainant did not demonstrate the requisite level of
confidence necessary for the position during the interview. In that
regard, they testified complainant did not adequately communicate her
answers to interview questions, and she chose to read from prepared
answers instead of engaging in a dialogue with the panel members.
The AJ found management officials credibly testified complainant was
not the most qualified for the position.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant failed to submit documentary or testimonial proof that her
qualifications were superior to the selectee's.
The AJ noted that complainant's only evidence of pretext consisted of
evidence that the selecting official had instructed complainant and other
Spanish-speaking co-workers not to speak Spanish in the office. The AJ
found, however, that the selecting official credibly testified that she
did not want Spanish spoken in the reception area where the employees came
in contact with the public, as well as non-Spanish speaking customers.
In sum, the AJ found complainant failed to establish the agency's reasons
for its actions were a pretext for discrimination.
On August 18, 2000, the agency issued a final order that implemented
the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
Pursuant to 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern
no basis to disturb the AJ's decision.
We do note, however, that prohibiting employees, at all times, in
the workplace, from speaking their primary language or the language
they speak most comfortably, disadvantages an individual's employment
opportunities because of national origin. 29 C.F.R. � 1606.7(a).
As such, the Commission will presume such a rule violates Title VII. Id.
An employer may, however, have a rule that employees speak only in English
at certain times when the employer can show the rule is justified by
business necessity. See 29 C.F.R. � 1606.7(b).
In the present case, the preponderance of the evidence reveals the
Selecting Official directed employees not to speak Spanish in the
reception area where they serviced non-Spanish speaking customers.
The record reveals the Selecting Official did not impose such a
rule on private conversations in private offices. There is also
insufficient evidence that employees were prohibited from speaking
Spanish to the public and customers, who preferred to conduct business
in Spanish. Therefore, according to the facts in the instant case, we
find that the agency satisfied its obligation to justify the practice by
business necessity in light of the need to speak English with employees
and customers who only speak English. See �Speak English Only Rules and
Other Language Policies,� EEOC Compliance Manual, Volume II, Section 623,
at p. 13 (May 1984).
Complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's race,
national origin, or age. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
3/6/03
Date