Yulia Herrera and Virginia Herrera, Complainants,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120055537_0120055540_r (E.E.O.C. Feb. 16, 2007)

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.