01971139
01-15-1999
Esmeralda Julian, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (P/W Region), Agency.
Esmeralda Julian v. United States Postal Service
01971139
January 15, 1999
Esmeralda Julian, ) Appeal No. 01971139
Appellant, ) Agency No. 1F-941-1042-95
v. ) Hearing No. 370-95-X2774
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(P/W 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 reprisal for prior EEO activity when she was allegedly denied higher
level work as a Postage Due Technician for two years, denied a copy of the
complaint made by another employee against her, and when she was allegedly
threatened and had her character attacked in a group discussion.
In 1990, appellant filed an EEO complaint alleging that a supervisor had
subjected her to sexual harassment and, after an EEOC Administrative Judge
recommended a finding in appellant's favor, the supervisor was demoted.
He appealed that demotion to the Merit Systems Protection Board ("MSPB").
Apparently, a settlement agreement was entered into before the MSPB,
and the supervisor was returned to duty, an action about which appellant
protested in February 1994. In August 1994, appellant made a formal
written request to receive training so that she could assume higher level
detail work as a Postage Due Technician. In September 1994, appellant was
called into the office of the Senior Manager of Distribution Operations
and, in the presence of two supervisors, a union steward and a coworker,
was confronted about a written complaint made by another employee and
allegedly threatened with discipline. Appellant was not given a copy
of the employee's complaint.
Appellant sought EEO counseling in November 1994, 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. The AJ found
that appellant could not establish a prima facie case of retaliation,
in that her prior EEO complaint was filed in 1990 and her protest about
the supervisor's return was made in February 1994. Appellant's written
request for higher level detail work was not made until August 1994, or
some four years after her prior EEO complaint and some six months after
she lodged her protest about the supervisor's return. In addition,
the AJ found "too implausible that ... management officials who had
had no involvement in the [sexual harassment] complaint retaliated
against [appellant] for that activity ... years later." Consequently,
the AJ was not persuaded that appellant established that there was a
causal connection between her prior protected activity and the adverse
employment actions of which she complained. See Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.),
aff'd 545 F.2d 222 (1st Cir. 1976)The agency adopted the RD in its FAD. 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 determinations of an AJ when, as
here, such determinations are based on the AJ's observations of the
demeanor of the witnesses. 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). Here, the AJ
found that relevant agency officials credibly testified that they were
not involved in her prior EEO complaint and did not take their actions
in order to retaliate against appellant for her protected EEO activity.
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