0120055537_0120055540_r
02-16-2007
Yulia Herrera and Virginia Herrera, Complainants, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yulia Herrera and Virginia Herrera v. United States Postal Service
0120055537, 0120055540
February 16, 2007
.
Yulia Herrera and Virginia Herrera,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 0120055537, 0120055540<1>
Agency Nos. 1G-781-0069-03, 1G-781-0068-03
Hearing Nos. 360-2005-00171X, 360-2005-00170X
DECISION
Complainants filed separate appeals with this Commission from two separate
July 21, 2005 agency decisions implementing the June 22, 2005 decision
of the EEOC Administrative Judge (AJ) finding no discrimination.
In their complaints which were consolidated for hearing before
the AJ, complainants, who are sisters, alleged that the agency
discriminated against them on the bases of race (Hispanic and
Mexican-Palestinian-American), national origin (Hispanic and
Mexican-Palestinian-American), color (white) sex (female), religion
(Muslim) and in reprisal for prior EEO activity when on July 1, 2003,
they were terminated from their casual employment and on October 15,
2003,were barred from working at the agency through its temporary
employment service.<2>
At the conclusion of the investigation, complainants received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued her consolidated decision following a hearing.
The agency argues that on July 1, 2003, the Tour I Manager of Distribution
Operations (MDO) determined that Casual employees were needed to work
overtime. The agency argues that when asked to work overtime, Yulia
Herrera (YH) refused to do so and created a scene on the workroom floor.
The agency also argues that the MDO informed the Senior Manager of
Distribution Operations (SMDO) that she wanted to terminate YH and the
SMDO concurred. The agency further alleges that Virginia Herrera (VH)
then elected to resign by turning in her badge when YH was terminated.
The agency has not rehired complainants.
The AJ concluded that the credible evidence persuaded her that neither
the MDO nor the SMDO knew the religion of the complainants or their
Palestinian national origin. The AJ found that the MDO did not know
complainants were Muslims because the MDO did not come to San Antonio
until December 2002. The AJ noted VH's testimony that their religion
was kept secret and YH's testimony that she and her sister had kept
their religion a secret after September 11, 2001. Regarding race and
national origin, Hispanic and Mexican-American, the AJ noted that both
the MDO and the SMDO assumed that complainants were Hispanic because
of their last names. The AJ found that neither the MDO nor the SMDO
would have had knowledge of complainants' Palestinian national origin,
noting the testimony of VH that neither the MDO nor the SMDO would have
had knowledge of complainants' Palestinian national origin. The AJ
found that both the MDO and her supervisor assumed that complainants
were Hispanic because of their last name, but that no one appeared to
know that complainants were also of Palestinian national origin.
Regarding sex as a basis of discrimination, YH testified that that she
and her sister were the only Casuals asked to work additional hours
on July 1, 2003. The AJ found that a third female employee, a Casual,
had already clocked out before the MDO announced that the Casuals had
to remain. Regarding sex and color, the AJ found that both the MDO and
the SMDO knew the color and sex of complainants.
Regarding prior EEO activity by complainants, the AJ found that a July 2,
2003 letter submitted by complainants to the acting MDO of Tour III did
not contain any information which could have been considered engaging
in protected activity. The AJ noted that the letter described only
what occurred when complainants were told to work additional hours and
did not indicate that complainants' alleged treatment by the MDO was
discriminatory. The AJ found that the EEO activity in which complainants
had participated was their pursuit of the instant EEO complaints of
which both the MDO and the SMDO became subsequently aware.
Regarding complainants' allegation that an employee at the temporary
employment agency told complainants that they would not be rehired because
of having filed an EEO complaint, the AJ found persuasive the testimony of
the employee of the temporary employment agency responsible for employment
of Casuals that she did not make this statement to either complainant.
The AJ concluded that the decision not to rehire complainants was
made on July 1, 2003, before management knew that complainants had
contacted an EEO Counselor and was, therefore, not retaliatory. The AJ
found credible the testimony of the MDO and the SMDO regarding their
decision not to rehire. The AJ noted that the MDO and the SMDO were
highly experienced managers with the agency and that the MDO was much
stricter than other managers. The AJ found that when the MDO told YH
to turn in her badge, which meant termination, that she meant business.
The AJ found further that when VH's badge was voluntarily turned in and
she resigned, her future as a Casual with the MDO was set and the MDO
would not have recommended her being rehired. The AJ also noted in her
decision that complainants chose the wrong managers to cross and that
the MDO and the SMDO were results oriented and unafraid to make hard
decisions such as the termination of Casuals and that neither the MDO
nor the SMDO would have been pleased to have a Casual employee respond to
an instruction by talking back or not acting as directed. The AJ found
that the MDO had simply had enough from complainants. The AJ noted the
testimony of the MDO that the SMDO had stated that supervisors on Tour
III appeared afraid or intimidated to ask complainants to work overtime;
that she had observed complainants become belligerent with their Tour
III supervisors when asked to work extra hours; and that one complainant
(not identified in the AJ's decision) twice told the MDO that she would
contact her Congressman. The AJ also noted that regardless of the
severity of the agency's actions, she could not find that complainants
were terminated for discriminatory reasons.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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. Additionally, the Commission notes that an
AJ's credibility determination based on the demeanor of a witness or on
the tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so lacks
in credibility that a reasonable fact finder would not credit it. See
EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Further, an AJ's credibility determinations are entitled to deference
due to the AJ's first-hand knowledge through personal observation of the
demeanor and conduct of the witness at the hearing. Grant v. Department
of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001).
Although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, the prima
facie inquiry may be dispensed with when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether complainant has established a prima
facie case and proceeds to the ultimate issue of whether complainant has
shown by a preponderance of the evidence that the agency's actions were
motivated by discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Upon review, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record. Even assuming that
complainant has proven a prima facie case on each basis, the agency
articulated legitimate, nondiscriminatory reasons for its actions
in terminating YH and not rehiring either complainant. The agency's
actions were based on complainants' insubordination and misconduct in
the workplace. Complainants failed to show that the agency's reasons for
its actions were mere pretext to hide unlawful discrimination. Moreover,
complainants did not establish by a preponderance of the evidence that
the agency's actions were motivated by discriminatory animus.
The agency decision finding no discrimination is AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 16, 2007
__________________
Date
1Due to a new data system, these matters have been re-designated with
the above referenced appeal numbers.
2The record reveals that the temporary employment agency placed
individuals seeking employment with the agency.