01a00380and01994651
04-24-2000
Alvin C. Hicks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
Alvin C. Hicks, )
Complainant, )
) Appeal Nos. 01994651
v. ) 01A00380
) Agency Nos. 4K-220-0096-98
William J. Henderson, ) 4K-220�0128-98
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated appeals from two final agency decisions
(FADs) concerning his two complaints 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., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et
seq., and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeals are hereby consolidated and
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405). Complainant alleged that he was discriminated
against on the bases of race (Caucasian and American-Indian), sex (male),
age (D.O.B. 7/20/56), physical disability (osteoarthritis-normal aging
spine), and retaliation (prior EEO activity) when:
(1) he was denied overtime on March 27, 1998, immediately following
a telephone call from the EEO office to his work site regarding his
recently-filed EEO complaint (agency case no. 4K-220-0096-98); and
(2) he has been denied overtime on an ongoing basis since May 22, 1998
(agency case no. 4K-220-0128-98).<2>
The record reveals that during the relevant time, complainant was employed
as a mail handler at the agency's postal annex facility in Arlington,
Virginia.
Believing he was a victim of discrimination when he was denied overtime
as referenced above, complainant sought EEO counseling and subsequently
filed formal complaints on June 30, 1998, and October 9, 1998. The
complaints were separately investigated, and at the conclusion of both
investigations, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. When complainant failed to respond within the
time period specified in 29 C.F.R. � 1614, the agency issued a final
decision in agency case no. 4K-220-0096-98 on May 11, 1999 (FAD #1)
and in agency case no. 4K-220-0128-98 on August 26, 1999 (FAD #2).
In FAD #1, the agency concluded that complainant had failed to establish
a prima facie case of race, sex, or age discrimination, finding that
complainant had not identified any similarly situated comparators outside
his protected class who were treated more favorably, and had not adduced
any other evidence which, if otherwise unexplained, would raise an
inference of discrimination. FAD #1 further concluded that complainant
had not established a prima facie case of retaliation, finding that he
failed to establish that the responsible agency officials were aware of
his prior EEO activity. FAD #1 also concluded that complainant failed
to establish a prima facie case of disability discrimination, finding,
inter alia, that there was no evidence that his referenced physical
impairment substantially limited him in any major life activities, or that
the responsible management officials so perceived complainant. Finally,
FAD #1 also found that even assuming arguendo complainant had established
a prima facie case of discrimination on any basis, he had failed to
prove by a preponderance of the evidence that the agency's proffered
legitimate non-discriminatory reasons for its actions were a pretext
for discrimination. Specifically, FAD #1 credited the assertion of the
responsible managers that overtime was scheduled on an as-needed basis,
and complainant was not denied overtime "because there was no work for
him outside his normal schedule."
In FAD #2, the agency rendered the same conclusions as it had in FAD #1,
except that FAD #2 concluded complainant failed to establish a prima
facie case of retaliation because his prior EEO activity was deemed to
have occurred on February 25, 1998, three months prior to the earliest
denial of overtime at issue. Thus FAD #2 concluded complainant had
failed to establish the requisite nexus between his prior EEO activity
and the denial of overtime necessary to establish a prima facie case of
retaliation.
Complainant has not submitted specific contentions on appeal, but has
asserted on both of his notices of appeal that the denials of overtime
in question additionally constituted a breach of a settlement agreement
he previously entered into with the agency. The agency requests that
we affirm its FADs.
Based on our review of the record, we conclude that the record is
inadequate to permit adjudication of the instant appeals, and remand for
a supplemental investigation is required. Specifically, in both of his
formal complaints, complainant identifies by name various comparators he
contends were assigned overtime when he was not, or were assigned more
overtime than him. Complainant asserts that he was sent home after his
regular hours whereas these other employees were permitted to perform his
duties as overtime work. While the record contains documents entitled
"Etc. Everything Reports" identifying the hours worked by complainant and
his co-workers during the relevant period, the record does not contain
affidavits from any of complainant's co-workers regarding what duties
they performed during the referenced overtime hours, and the extent to
which those duties were the same as complainant's mail handler duties.
In addition, we note that while the record does contain a work
restriction evaluation dated April 6, 1998, describing complainant's
medical restrictions as of that date, the record does not contain such
information regarding the preceding time period. Although the record
contains a letter from complainant's physician dated March 27, 1998,
which states complainant's diagnosis as of that date, the record does not
indicate whether, and if so how, complainant's impairment substantially
limited him in any major life activities as of that date or previously.
See 29 C.F.R. � 1630.2(g) and (i). This information may be obtained
from complainant, and if the agency sees fit, also from his physician.
We further note that FAD #2 erred in reasoning that complainant
could only establish a prima facie case if he identified comparator
employees outside his protected class who were treated more favorably
than he was treated. While comparative evidence is usually used to
establish disparate treatment, complainant need only set forth some
evidence of acts from which, if otherwise unexplained, an inference
of discrimination can be drawn. Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). Additionally, FAD #2 applied the incorrect
standard in analyzing whether complainant established a prima facie case
of retaliation. Where retaliation is the basis for a Title VII claim,
an complainant may establish a prima facie case by showing: (1) that
he engaged in prior protected activity; (2) that an official named in
the complaint knew of that activity; (3) that he was disadvantaged by
an action of the employer subsequent to or contemporaneous with such
opposition and participation;<3> and (4) that the protected activity
and the adverse action were sufficiently close in time to permit an
inference of retaliatory motive. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). In analyzing the third prong of this
prima facie case standard, the agency must bear in mind that activity
related to an EEO claim often begins rather than ends on the date EEO
Counselor contact is initiated, or the formal complaint is filed. FAD #2
incorrectly limited the inquiry to determining the length of time elapsed
between the date on which complainant's prior EEO complaint was filed and
the date of the adverse action at issue. Instead, the proper inquiry
includes consideration of what has transpired since the complainant
initiated EEO Counselor contact or filed his formal complaint, including
communications between the EEO office and management or co-worker
witnesses, investigative interviews or execution of affidavits, and
so on. Moreover, the agency must consider not only prior EEO activity,
but other protected activity as well, such as a request for disability
accommodation. See EEOC Compliance Manual, Section 8 (Retaliation)
at 8-6 (May 20, 1998) ("[a] request for reasonable accommodation of
a disability constitutes protected activity under Section 503 of the
ADA").<4> In addition, we note that a three-month span between protected
activity and the alleged retaliation can be sufficiently close in time
to permit an inference of retaliation. Id. at 8-18 - 8-19.
Finally, as referenced above, complainant contends on appeal that the
denial of overtime at issue in these two complaints constituted a breach
of a prior settlement agreement into which he entered with the agency.
This issue is not before us. Alleged breaches of settlement agreements
must be raised pursuant to the procedures set forth in 64 Fed. Reg. 37,660
(1999) (to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.504). Complainant may invoke these procedures as
appropriate with respect to any alleged settlement breach.
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 VACATE the FADs and
REMAND the complaints, as consolidated, for processing consistent with
this decision and the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation on the
remanded claims in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108), to
obtain and include the following information in the investigative file:
1. Affidavits from the comparators named in the two formal complaints
here at issue, specifying the duties they performed when working overtime
on the dates in question, as compared to complainant's duties to their
knowledge; and
2. Affidavits and/or other documentary evidence regarding whether
complainant is an "individual with a disability," including but not
limited to the nature of complainant's diagnosis as of March 27, 1998,
and whether, and if so how, complainant's impairment substantially
limited him in any major life activities as of that date or previously.
See 29 C.F.R. � 1630.2(g) and (i).
The agency shall acknowledge to the complainant that it has received
the remanded claims within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the supplemental investigation file and a new final agency decision,
with required notice of rights, within ninety (90) calendar days of
the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. The agency shall not issue complainant a
notice of right to request a hearing before an EEOC Administrative Judge,
inasmuch as complainant has already received notice of such rights and
declined to request a hearing.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c) (Supp. V 1993). If the complainant files a civil action,
the administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
April 24, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In agency case no. 4K-220-0128-98, complainant also claimed that he was
discriminated against on the above-referenced bases when, on July 22,
1998, he received a suspension for unsatisfactory performance/failure
to follow instructions. This claim was dismissed in the agency's notice
of partial acceptance/partial dismissal dated November 16, 1998, and the
record indicates that complainant did not appeal the partial dismissal.
3The Commission interprets the statutory retaliation clauses "to prohibit
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity." EEOC Compliance Manual, Section 8 (Retaliation)
at 8-13 - 8-14 (May 20, 1998).
4The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.