01984525
02-28-2001
Diannia Estrada, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Diannia Estrada v. United States Postal Service
01984525
February 28, 2001
.
Diannia Estrada,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984525
Agency No. 4F-945-1106-95
Hearing No. 370-96-X2292
DECISION
Complainant timely initiated an appeal from the agency's final decision
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.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the bases of sex (female)
and national origin (Hispanic) when (1) on February 14, 1995, she was
told by her supervisor (Supervisor I) to clock out and go home based on
a charge of failure to obey a direct order and disruptive conduct; and
(2) on February 27, 1995, she was issued a five-day suspension based on
the events of February 14, 1995, and on a charge of Failure to Follow
Instructions/Absent from Work Assignment, based on events of February
17, 1995. For the following reasons, the Commission affirms the agency's
final decision.
The record reveals that complainant, a Distribution Clerk and Chief Union
Steward at the agency's Hayward, California Post Office filed a formal
EEO complaint with the agency on June 8, 1995, alleging that the agency
had discriminated against her as referenced above. 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 Findings and Conclusions of
no discrimination.
Complainant and the Supervisor each recited different versions of the
events of February 14, 1995. Both averred that complainant asked to be
immediately excused from her assignment to process six union grievances.
The Supervisor informed complainant that she could not be excused at that
time, due to mail volume, but that she might be excused later in the day
after the Supervisor evaluated the mail volume. The Supervisor claimed
that complainant did not accept this, became loud and argumentative,
and refused to case mail as ordered. Complainant claimed that the
Supervisor became rude and angry as she attempted to negotiate time
to work on union matters. The AJ found that statements by co-workers
supported the Supervisor's account of the incident.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on either bases. Regarding issue (1), the AJ
found that two employees complainant cited as comparison employees who
received different treatment than she under the same circumstances were
not similarly situated because both reported to different supervisors.
The AJ noted that, although complainant argued that such a distinction
was irrelevant, there was no record evidence to support that assertion.
Regarding issue (2), the AJ found that, although complainant presented
arguments that she had a legitimate reason for being absent from her work
station on February 17, 1995, she presented no evidence of similarly
situated employees who were treated more favorably than she, and no
evidence that the disciplinary action was motivated by discrimination.
Complainant argued that discrimination should be inferred due to certain
administrative irregularities in the suspension,<2> but the AJ found that
the action occurred while complainant was acting in her union capacity
and there was no indication that the suspension was based on her sex
and national origin.
The agency's final decision implemented the AJ's decision. On appeal,
complainant restates arguments previously made at the hearing regarding
whether the fact that the employees she cited as similarly situated
reported to a different supervisor was relevant. Complainant also argues
that the AJ erred by denying as cumulative certain witnesses, and issued
findings and conclusions of fact that have no support in the testimony.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Generally, in order for
two or more employees to be considered similarly situated, all relevant
aspects of the employees' work situation must be identical or nearly
identical, including having the same supervisor. Godby v. Department
of the Treasury, EEOC Request No. 05960220 (May 7, 1998)(citing Smith
v. Monsanto Chemical Co.,770 F.2d 719, 723 (8th Cir. 1985)).
Furthermore, upon complete examination of the record, we find that the
evidence taken as a whole does not establish discrimination based on
complainant's sex or national origin. Regardless of whether complainant
was unfairly disciplined, complainant failed to present evidence that
the agency's actions were motivated by discrimination. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 28, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
2 The Disciplinary Worksheet for the suspension was dated February 16,
1995, and the section where an employee would normally explain their
actions was blank.