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.