01971305
01-15-1999
Elsa Brugues, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (All./Mid-Atl. Region), Agency.
Elsa Brugues v. United States Postal Service
01971305
January 15, 1999
Elsa Brugues, ) Appeal No. 01971305
Appellant, ) Agency No. 4H-330-1091-95
v. ) Hearing No. 150-95-8402X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(All./Mid-Atl. Region), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001. In her
complaint, appellant alleged that she was discriminated against based
on her race (Caucasian), and national origin (Hispanic) and reprisal
for prior EEO activity when she was issued a Letter of Warning ("LOW").
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
appellant timely requested a hearing before an EEOC Administrative Judge
("AJ"). After a hearing, the AJ issued a recommended decision ("RD")
finding no discrimination. Although appellant noted that another employee
(Black) had as many instances of lateness or unscheduled absences as
she, the AJ found that the other employee had provided documentation
which permitted her to obtain coverage under the Family Medical Leave
Act (the "FLMA") for instances of lateness or unscheduled absences due
to her child's medical condition. When, prior to issuance of the LOW,
a meeting was called among appellant, her union representative and an
agency official to discuss her absences, appellant merely stated that
"when she is sick, she's sick and that she will call in." At that time,
appellant did not claim that her absences were due to a family emergency,
and she never requested leave under the FLMA. The AJ was not persuaded
that appellant was similarly situated to the employee who had provided
documentation to obtain leave under the FLMA or that the agency's keeping
of that employee's attendance sheet was fraudulent because it omitted
leave granted pursuant to the FLMA documentation. The AJ found that the
testimony of appellant's supervisor, who maintained that he was forced to
issue the LOW was not credible, and showed only that "he may not be ready
to assume supervisory responsibilities." Insofar as appellant attempted
to establish that higher agency officials harbored ill feelings toward
non-Blacks and those who engaged in EEO activity, the AJ found that
the testimony of certain of her coworkers was not credible due to their
receipt of discipline for various offenses, including attendance, leaving
vehicles unattended and conducting personal business while on duty.
In its FAD, the agency adopted the RD. Appellant timely appeals, but
offers no argument.
After a thorough review of the record, the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission notes that it generally
will not disturb the credibility determination of an AJ. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). Accordingly, the Commission discerns no basis to disturb the
AJ's finding that appellant failed to establish discrimination and it is,
therefore, the decision of the Commission to AFFIRM the FAD.
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. �1614.604(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:
Jan 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations