Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01973389 (E.E.O.C. Jan. 15, 1999)

01973389

01-15-1999

Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas), Agency.


Karla D. Deering v. United States Postal Service

01973389

January 15, 1999

Karla D. Deering,

Appellant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast/Southwest Areas),

Agency.

Appeal No. 01973389

Agency No. 1-H-322-1025-94

4-H-320-1220-94

Hearing No. 150-95-8315X

150-95-8340X

DECISION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concerning her allegations that: (Agency No. 1-H-322-1025-94/Complaint

1) she was discriminated against on the basis of reprisal (prior EEO

activity) when on March 24, 1994 she became aware of a memorandum in

her personnel file stating that she should not be rehired; and (Agency

No. 4-H-320-1220-94/Complaint 2) she was discriminated against on the

bases of sex (female) and reprisal (prior EEO activity) when on June 6,

1994, she was not hired as a transitional employee (TE)<1> and was told

that it took three months to process applications, in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

The Commission hereby accepts the appeal in accordance with EEOC Order

No. 960.001.

Believing that she was the victim of discrimination, appellant sought EEO

counseling and filed formal EEO Complaint 1 on May 17, 1994 and formal

EEO Complaint 2 on August 31, 1994. Thereafter, the agency accepted the

complaints for investigation and complied with all of our procedural

and regulatory prerequisites. Subsequently, appellant requested a

hearing before an EEOC Administrative Judge (AJ). The complaints were

consolidated for a hearing, which was held on July 16 and 17, 1996.

At the conclusion of the hearing, the AJ issued a Recommended Decision

(RD) finding discrimination in Complaint 1 and finding no discrimination

in Complaint 2. With respect to Complaint 1, the AJ concluded that

the agency's articulated nondiscriminatory reason for its action

was pretextual. With respect to Complaint 2, the AJ concluded that

appellant had failed to establish a prima facie case of discrimination

because she failed to show that she was subjected to an adverse action.

Specifically, the AJ reasoned that the agency had not hired any TEs

during the relevant time frame. Thereafter, the agency issued a FAD,

dated February 14, 1997, that adopted the AJ's recommended finding of

discrimination. It is from this decision that appellant now appeals.

On appeal, appellant alleges, among other things, that: (1) the agency

modified one of the AJ's recommended remedies; and (2) the agency had

in fact hired at least one additional TE during the relevant time frame.

In July of 1993, appellant filed a formal EEO complaint (prior EEO

activity) against the agency because she believed the agency had

discriminatorily advised her to resign her TE position at the agency's

Bulk Mail Center (BMC) in Jacksonville, Florida, when she informed her

supervisors that she was pregnant. Appellant alleged that she resigned

because the Manager of Distribution Operations (MDO) informed her that

the agency did not have any work that would accommodate her lifting

restrictions and told her that she could reapply for a TE position once

she had her baby. On September 22, 1993, while appellant was at the

unemployment compensation office, she informed an official at that office

of her concern that she had been unlawfully forced to resign. Thereafter,

the official called the agency's personnel office and admonished them for

their treatment of appellant. That same day, the adverse memorandum was

placed in appellant's personnel file. Agency officials testified that

the memorandum was placed in appellant's file because she had been a

less-than-exemplary employee. The record, however, did not support the

agency's assertion. The AJ found that a similarly situated comparative

TE (C1) also resigned from the agency because of pregnancy and was later

reappointed to a TE position. The record revealed that C1 was less than

exemplary, but had not engaged in protected EEO activity. Accordingly,

the AJ concluded that the agency's explanation was not credible and

found that appellant was subjected to reprisal discrimination.

After careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission finds

that, with respect to Complaint 1, the AJ's RD sets forth the relevant

facts, and properly analyzes the appropriate regulations, policies

and laws. The Commission discerns no basis to disturb the AJ's finding.

Accordingly, the agency shall comply with the ORDER set forth below.

In March 1994, after appellant had her baby and was medically cleared to

return to work, she contacted the agency to ask about the availability

of a TE position. She was informed by someone in the personnel office

of the existence of the memorandum recommending that she not be rehired.

Nevertheless, appellant submitted an application, and on June 6, 1994,

the agency informed her that there had been no TE positions available and

that, possibly, casual employee position might become available during the

Christmas season.<2> Moreover, the agency's Human Resources Specialist

(HRS) testified at the administrative hearing that no new TE positions

were available after March of 1994 because the positions were being

phased out. The investigative record reveals that, while the number

of TEs diminished greatly between 1994 and 1995, the agency had made

at least one TE appointment after March of 1994. On appeal, appellant

presents a copy of an agency memorandum from the HRS to the agency's

hearing representative, dated February 2, 1996 (five and one-half months

before the hearing), which states that "I MADE AN ERROR IN ANSWERING

THE QUESTION REGARDING TE PPDMO'S HIRED AFTER JUNE, 1994."<3> The

record goes on to list a woman who was hired as a TE in August of 1994.

While documents attached to the memorandum list other TE appointments,

it is not clear how late after March 1994 these appointments were made,

nor whether the appointments were of the same PPDMO qualification.

Appellant alleges that this evidence was misfiled in the prior EEO

activity case file, and was, therefore, not presented at the hearing.

Nevertheless, it is apparent that the agency was aware of this information

at the time of the hearing and made no effort to explain its actions.

Moreover, the agency presented no statement on appeal to explain the

circumstances surrounding the TE appointment after March 1994.

With respect to Complaint 2, the Commission departs from the AJ's

recommended finding of no reprisal discrimination. While the AJ set

forth the relevant facts known to her at the time of the hearing, and

thoroughly and properly analyzed the appropriate regulations, policies

and laws, the information gleaned since that time demands a different

conclusion. Applying the legal standard outlined in McDonnell Douglas

Corp. V. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F.Supp. 318, 324 (D.Mass.), aff'd,

545 F.2d 222 (1st Cir. 1976)(applying the McDonnell Douglas standard to

reprisal cases), we find that appellant was also subjected to reprisal

discrimination when she was not hired as a TE, at the earliest, in June

1994, but at least by August 1994, when the agency hired another TE.

While there is no indication whether the woman who was hired had any

prior EEO activity, several factors weigh in favor of concluding that

appellant was discriminated against. First, the AJ's well-reasoned RD

shows that the only reason appellant failed to establish a prima facie

case with respect to not being hired was that the agency allegedly

had no positions available. The record reveals, however, that by the

time of the hearing the agency knew the facts to be otherwise, but

nevertheless testified that no one had been hired. Secondly, in light

of the retaliatory memorandum placed in appellant's personnel file,

it is reasonable to infer that the agency had no intention of offering

appellant a position in 1994. Finally, we note that the agency offered

no explanation for its actions by way of an appeal statement.<4>

Accordingly, the agency's decision finding reprisal discrimination in

Complaint 1 is AFFIRMED. That part of the FAD which found no reprisal

discrimination with respect to Complaint 2 is REVERSED and REMANDED for

the agency to comply with the terms of the ORDER below.

ORDER (D1092)

The agency is ORDERED to take the following remedial actions:

1. To the extent it has not already done so, the agency shall take

corrective, curative and preventive action to ensure that reprisal

discrimination does not recur, including but not limited to providing

training to the responsible official(s) at the Bulk Mail Center,

Jacksonville, Florida (Jacksonville BMC), in the law against employment

discrimination. Within thirty (30) calendar days of the date the

training is completed, the agency shall submit to the compliance Officer

appropriate documentation evidencing completion of such training.

2. The agency shall offer the appellant a transitional employee position,

or comparable position, and determine the appropriate amount of back pay

(with interest) from March 24, 1994, and other benefits due appellant,

pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar

days after the date this decision becomes final. The appellant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due, and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the appellant

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. The appellant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

3. To the extent it has not already done so, the agency shall expunge any

and all derogatory annotations in appellant's Official Personnel Folder

and/or all other agency records regarding the agency's recommendation

not to rehire appellant.

4. To the extent it has not already done so, the agency shall pay

appellant for reasonable expenses incurred in attending the hearing

and reimbursement for any expenses incurred in connection with the

investigation and hearing process of the complaint.

5. No later than sixty (60) calendar days after the date this decision

becomes final the agency shall conduct an investigation into what

compensatory damages appellant may be entitled to as a result of the

reprisal discrimination.

6. 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 of the

agency's calculation of back pay and other benefits due appellant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at the Jacksonville BMC 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 (H1092)

If appellant has been represented by an attorney (as defined by 29

C.F.R. � 1614.501 (e)(1)(iii)), he or 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 (K0595)

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 appellant.

If the agency does not comply with the Commission's order, the appellant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408,

1614.409, and 1614.503 (g). Alternatively, the appellant 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. ��

1614.408 and 1614.409. 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 appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.

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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. In the alternative, you may file

a civil action AFTER ONE HUNDRED EIGHTY (180) CALENDARS 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. 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

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated ___________ which found that a

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The United States Postal Service, Bulk Mail Center in Jacksonville,

Florida (Jacksonville BMC), supports and will comply with such Federal

law and will not take action against individuals because they have

exercised their rights under law.

The Jacksonville BMC, has been found to have discriminated on the basis

of reprisal when an employee was not rehired as a transitional employee.

The Jacksonville BMC has been ordered to take corrective action in the

form of training for the responsible official, reinstatement and back

pay to the individual discriminated against, and to investigate the

individual's entitlement to compensatory damages. The Jacksonville

BMC, will ensure that officials responsible for personnel decisions and

terms and conditions of employment will abide by the requirements of

all Federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

The Jacksonville BMC will not in any manner restrain, interfere, coerce,

or retaliate against any individual who exercises his or her right to

oppose practices made unlawful by, or who participates in proceedings

pursuant to, Federal equal employment opportunity law.

Date Posted: _____________________ ____________________

Posting Expires: _________________

29 C.F.R. Part 1614

1Transitional employees are employed for a temporary term not to exceed

359 days, and may be reappointed at the conclusion of the term so long as

there is a six-day break between appointments.

2Casual employees are employed for a temporary term not to exceed three

months, and their appointments may be renewed in three-month increments.

3Apparently, a PPDMO is a type or qualification of a TE. In any event,

the record reveals that appellant was within this qualification.

4We also note that our finding of discrimination in Complaint 2, in

effect, cures the concern that appellant expressed on appeal about the

agency's modification of one of the AJ's recommended remedies.