Gladys Alvarez, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 6, 2003
01a10091 (E.E.O.C. Mar. 6, 2003)

01a10091

03-06-2003

Gladys Alvarez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Gladys Alvarez v. Department of Veterans Affairs

01A10091

3/6/03

.

Gladys Alvarez,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A10091

Agency No. 98-1108

Hearing No. 160-99-8096X

DECISION

Complainant timely initiated an appeal from the agency's final order

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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �

1614.405. For the following reasons, the Commission AFFIRMS the agency's

final order.

The record reveals that complainant, a Personnel Specialist at the

agency's New York, New York facility, filed a formal EEO complaint on

March 25, 1998, alleging that the agency had discriminated against her

on the bases of race (Hispanic), national origin (Puerto Rican), and age

(D.O.B. 7/21/45) when she was not selected for the position of Employee

Relations Specialist.

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 a decision finding no

discrimination.

The AJ concluded that complainant established a prima facie case of

discrimination on all bases because the selectee for the position was not

in complainant's protected classes. The AJ further concluded that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

The AJ found that the selecting official and panel members collectively

testified that complainant did not demonstrate the requisite level of

confidence necessary for the position during the interview. In that

regard, they testified complainant did not adequately communicate her

answers to interview questions, and she chose to read from prepared

answers instead of engaging in a dialogue with the panel members.

The AJ found management officials credibly testified complainant was

not the most qualified for the position.

The AJ found that complainant did not establish that more likely

than not, the agency's articulated reasons were a pretext to mask

unlawful discrimination. In reaching this conclusion, the AJ found that

complainant failed to submit documentary or testimonial proof that her

qualifications were superior to the selectee's.

The AJ noted that complainant's only evidence of pretext consisted of

evidence that the selecting official had instructed complainant and other

Spanish-speaking co-workers not to speak Spanish in the office. The AJ

found, however, that the selecting official credibly testified that she

did not want Spanish spoken in the reception area where the employees came

in contact with the public, as well as non-Spanish speaking customers.

In sum, the AJ found complainant failed to establish the agency's reasons

for its actions were a pretext for discrimination.

On August 18, 2000, the agency issued a final order that implemented

the AJ's decision.

Complainant makes no new contentions on appeal, and the agency requests

that we affirm its final order.

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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record

and that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. We discern

no basis to disturb the AJ's decision.

We do note, however, that prohibiting employees, at all times, in

the workplace, from speaking their primary language or the language

they speak most comfortably, disadvantages an individual's employment

opportunities because of national origin. 29 C.F.R. � 1606.7(a).

As such, the Commission will presume such a rule violates Title VII. Id.

An employer may, however, have a rule that employees speak only in English

at certain times when the employer can show the rule is justified by

business necessity. See 29 C.F.R. � 1606.7(b).

In the present case, the preponderance of the evidence reveals the

Selecting Official directed employees not to speak Spanish in the

reception area where they serviced non-Spanish speaking customers.

The record reveals the Selecting Official did not impose such a

rule on private conversations in private offices. There is also

insufficient evidence that employees were prohibited from speaking

Spanish to the public and customers, who preferred to conduct business

in Spanish. Therefore, according to the facts in the instant case, we

find that the agency satisfied its obligation to justify the practice by

business necessity in light of the need to speak English with employees

and customers who only speak English. See �Speak English Only Rules and

Other Language Policies,� EEOC Compliance Manual, Volume II, Section 623,

at p. 13 (May 1984).

Complainant failed to present evidence that any of the agency's actions

were motivated by discriminatory animus toward complainant's race,

national origin, or age. Therefore, after a careful review of the record,

including arguments and evidence not specifically addressed in this

decision, we affirm the agency's final order.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

3/6/03

Date