0120070276
06-17-2009
Alma J. Islas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alma J. Islas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070276
Hearing Nos. 110-2005-00310X, 100-2005-00465X
Agency Nos. 4H-300-0307-04, 4H-300-0082-05
DECISION
Complainant filed an appeal from the agency's final action dated September
22, 2006, finding no discrimination with regard to her complaints. In her
complaint, dated December 16, 2004, complainant alleged discrimination
based on race (Hispanic), sex (female), and in reprisal for prior EEO
activity when:
(1) On October 19, 2004, she was instructed not to speak Spanish while
on the job;
(2) On November 2, 2004, she was sent home; and,
(3) On December 28, 2004, she was issued a Letter of Warning (LOW)
for irregular attendance.1
Initially, it is noted that complainant also raised the claims that she
was told not to wear a sweater around her waist while working in the
machine area; and she was issued a LOW on December 27, 2004. On June
17, 2005, the agency dismissed these issues.2 Since complainant does
not contest this dismissal on appeal, and because we see no error in
the agency's dismissal, we need not alter the agency's finding.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 13, 2006, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate, as
no genuine dispute of material fact exists. The AJ noted that the agency
submitted motions for summary judgment, but complainant did not respond.
Complainant does not dispute this on appeal. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents.
With regard to claim (1), the supervisor stated that she received a
complaint from an identified employee that complainant and her two
friends/employees were speaking Spanish in a manner that made her
believe that she was the subject of the conversation and that she felt
uncomfortable. The supervisor indicated that the fact that her employees
were speaking Spanish was not relevant so much as the fact that they
were engaging in conduct which made other employees feel like they were
being discussed negatively. Thus, she instructed all three employees,
including complainant, to cease speaking in that manner. The record
contains the identified employee's written statement dated October 18,
2004, indicating that complainant and the two employees, described
above, "were speaking in Spanish in front of [her] and then laughing,
[she] brought it to [the supervisor's] attention because it made [her]
feel uncomfortable and like they were talking about [her]."
Upon review, we agree with the AJ's finding that complainant was not
subjected to a speak English only rule under the foregoing situations. See
29 C.F.R. � 1606.7(b) (a rule requiring that employees speak only in
English at certain times must be justified by business necessity); EEOC
Compliance Manual, Volume II, Section 623 ("Speak-English-Only Rules and
Other Language Policies"); New Compliance Manual, Section 13 - National
Origin Discrimination (November 22, 2002) ("An English-only rule would
be unlawful if it were adopted with the intent to discriminate on the
basis of national origin"); Funes v. Department of Homeland Security,
EEOC Appeal No. 0120051364 (December 4, 2006) (finding that no English
only rule existed where the manager told complainant to speak English
only while on duty); Vindas-Krych v. United Stated Postal Service, EEOC
Appeal No. 01A45939 (August 31, 2006) (finding that no English only rule
existed where complainant was instructed not to speak Spanish while in
the presence of another employee who did not speak Spanish); Wallace
v. Department of Commerce, EEOC Appeal No. 01A15109 (January 23, 2003)
(finding that no English only rule existed where complainant made a
statement in Spanish, and the manager told her to speak English only).
The AJ found that the supervisor was reacting to the "negative manner"
of complainant's speech and "not that [complainant] was speaking in
Spanish."
With regard to claim (2), the supervisor indicated that she and
complainant had a confrontation concerning complainant's work performance
and taking breaks and complainant spoke to her in a hostile and aggressive
manner and pointed her finger at her as she spoke. The supervisor
stated that she sent complainant home because she was acting in a manner
inappropriate for the workplace.
With regard to claim (3), the supervisor stated that she issued
complainant LOW for her failure to be regular in attendance from August
21, 2004, to December 23, 2004, on ten different occasions. On appeal,
complainant does not dispute this.
Based on the foregoing, we agree with the AJ's finding that the agency
has articulated legitimate, nondiscriminatory reasons for the alleged
incidents. Furthermore, we do not find that any agency actions were
motivated by discrimination.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
6/17/09
__________________
Date
1 On appeal, complainant indicates that she withdrew her claims concerning
the April 2005 LOW and the janitorial assignment incidents in October
2004. Accordingly, we need not discuss these issues in this decision.
2 On appeal, complainant erroneously indicates that the agency's June 17,
2005 partial decision accepted the December 27, 2004 LOW.
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0120070276
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013