01990238
04-03-2000
Angela C. White, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Angela C. White v. United States Postal Service
01990238
April 3, 2000
Angela C. White, )
Complainant, )
) Appeal No. 01990238
v. ) Agency No. 4E970108595
) Hearing No. 380-97-8055X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final 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.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the reasons that follow, the Commission REVERSES the FAD and REMANDS
the complaint consistent with the ORDER below.
During the relevant time complainant was employed by the agency as a
Utility Letter Carrier at its Piedmont Station in Portland, Oregon.
She claims that she was discriminated against on the bases of race
(black), sex (female), and reprisal (for reporting sexual harassment),
when she was terminated effective June 16, 1995, for unacceptable
conduct (improper disposition of deliverable mail on April 13, 1995).
Complainant denies that she discarded a bundle of deliverable third class
mail, averring that while she was clearing her undelivered mail that day,
a co-worker (CW) sexually harassed her (unwelcome touching), causing her
to leave the bundle hurriedly in a container. She contends that it was
her understanding that CW, who at times had supervisory authority over
her, would properly case the bundle for her to deliver the next day.
Instead, CW reported the "discarded" bundle to a management official,
who in turn, contacted Postal Inspectors. The agency determined that
complainant was guilty of improperly discarding the bundle, and that
termination was appropriate.
Complainant claims that the managers who made the decision to terminate
her were motivated by discriminatory animus toward her race and sex,
arguing that three white males were guilty of the same (or worse)
infractions, but that they were not terminated. She also claims that
she reported prior incidents of sexual harassment by CW shortly before
she was terminated, and that the decision to terminate her was motivated
by reprisal for her reporting sexual harassment.
Believing that she was a victim of discrimination and reprisal,
complainant filed a formal discrimination complaint against the agency.
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 discrimination on the bases of race and sex, but no discrimination
on the basis of reprisal.
The AJ concluded that complainant established a prima facie case of race
and sex discrimination based on the comparative evidence regarding the
three white male workers who received less severer discipline for the
same type of infraction. The AJ also found that complainant established
a prima facie case of reprisal due to the short amount of time between
her report of sexual harassment and her termination.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that based on the testimony of agency witnesses, management officials
correctly determined that complainant did, in fact, improperly dispose of
the third class bundle of mail at issue, noting that this determination
was based on the report of the Postal Inspectors, as well as an additional
investigation conducted by management into the matter.
In his pretext analysis, the AJ further concluded that complainant
established that more likely than not, the reasons provided by the
agency were a pretext for race and sex discrimination. In reaching
this conclusion, the AJ found that the three white male workers had
each improperly discarded mail under circumstances making them far
more culpable than complainant, and yet the same management officials
who terminated complainant, punished the three white male workers
with much less severe disciplinary action. Therefore, although the AJ
determined that complainant was guilty of the infraction with which
she was charged,<2> he found that the agency's disciplinary action
(termination) was too severe and based on discriminatory animus. However,
the AJ determined that complainant was unable to show pretext regarding
her reprisal claim, noting that the record failed to show any relationship
between her report of the sexual harassment and the resulting termination,
suggesting that complaint made the report with the purpose of using it
as a defense in the impending disciplinary action.
As relief, the AJ noted that complainant was not entitled to back pay in
light of the finding that she did commit the infraction at issue. The AJ
then noted an Arbitrator's decision reduced the termination to a long term
suspension, which the AJ found appropriate under the circumstances.<3>
The AJ ordered relief consisting of expungement of the termination
from complainant's employment record, and reinstatement pursuant to
the Arbitrator's decision. The AJ also ordered payment of reasonable
attorney fees as well as compensatory damages in the recommended amount
of $10,000. The AJ further ordered the agency refrain from retaliation
against complainant, and to provide EEO training for its managers,
supervisors, and employees, and to post a Notice declaring the finding
of discrimination and remedy awarded to complainant.
The FAD adopted the AJ's finding of no discrimination based on reprisal,
but rejected the finding of discrimination based on race and sex.
The agency argues that the decision to terminate complainant was based
only on the investigative records, and that race and sex played no role
in this decision, and that inconsistent discipline is not necessarily
evidence of discrimination. The FAD also found that compensatory damages
are not warranted based on its finding of no discrimination.
On appeal, complainant disputes the AJ's finding that she was guilty
of improperly disposing of the third class mail at issue, and argues
that her termination was motivated by reprisal regarding her report of
sexual harassment, additionally averring that the agency failed to take
corrective action after she reported CW, contending that she is entitled
to an award of back pay for this reason as well.<4> Alternatively, she
also contends that the 16 month suspension without pay was excessive
discipline, and not on "par" with that of the identified comparators.
The agency requests that we affirm its FAD.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).
The Commission finds that the AJ's RD summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We find
that the AJ's determination that complainant was guilty of improper
disposal of the mail is supported by substantial evidence, as is his
finding that the responsible management officials' decision to terminate
complainant was motivated by discriminatory animus, but not reprisal.
We additionally find that the AJ ordered the appropriate remedies in
this case. We discern no basis to disturb the AJ's decision in this
matter. Therefore, after a careful review of the record, including
complainant's arguments on appeal, the agency's response, and arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final and REMANDS the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
1. If it has not already done so, the agency is ordered to expunge the
termination action from complainant's personnel records, and replace it
with the suspension as ordered by the Arbitrator's decision referenced
above.
2. If it has not already done so, the agency is order to reinstate
complainant pursuant to the order in the Arbitrator's decision referenced
above.<5>
3. The agency is ordered to issue a check to complainant in the amount
of $10,000.00, with interest back to the date of its receipt of the RD,
as the amount of compensatory damages recommended by the AJ.
4. The agency is ordered to provide at least 16 hours of EEO training
to all management officials, supervisors, and CW. The purpose of this
training is to educate those responsible for the discrimination which
occurred in this case so that it will not be repeated in the future.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Piedmont Station in Portland,
Oregon, copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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).
COMPLAINANT'S 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 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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 making this determination, the AJ found that the agency provided
consistent credible evidence and testimony, whereas the complainant
proffered conflicting explanations throughout the record, such that her
testimony on this point was not credible.
3The AJ found that this was appropriate with reference to the discipline
received by the white male worker whose misconduct was most similar to
that of complainant's, noting that he received a suspension without
pay (albeit far shorter than complainant's 16 month suspension) and
a demotion.
4We find that this claim is raised for the first time on appeal.
As such, the record on this issue has not been developed for appeal,
and it is not appropriately before us at this time. Accordingly, we
do not further address it herein. However, in light of our concurrence
with the AJ's determination that complainant did improperly dispose of
mail, (and that she was not distracted by an act of sexual harassment),
a finding of sexual harassment regarding alleged prior incidents committed
by CW would not change the remedy in the instant case.
5According to the record it appears that the actions in #1 and #2 have
already been accomplished.