Barbara J. Blackmon, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 6, 2003
01A22058 (E.E.O.C. Mar. 6, 2003)

01A22058

03-06-2003

Barbara J. Blackmon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Barbara J. Blackmon v. United States Postal Service

01A22058

March 6, 2003

.

Barbara J. Blackmon,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A22058

Agency No. 4J604002200

Hearing No. 210-A1-6174x

DECISION

Barbara J. Blackmon (complainant) timely initiated an 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission remands the complaint for a supplemental investigation.

The record reveals that during the relevant time, complainant was employed

as a Distribution Clerk at the agency's Hinsdale, Illinois facility.

Complainant sought EEO counseling and subsequently filed a formal

complaint on February 4, 2000, which was amended to include additional

allegations on May 26, 2000. Therein, complainant alleged that she was

discriminated against on the bases of race (African-American) and sex

(female), and subjected to retaliation for prior EEO activity (under

Title VII) when:

(1) on October 5, 1999 and April 4, 2000, she was denied official time

as an EEO representative;

on October 21, 2000, she was denied Leave Without Pay (LWOP) for ADR

training;

on October 25, 1999, she was charged Absent Without Leave (AWOL) and

issued a 7-day suspension;

on November 4, 1999, her request for leave to participate in a Church

function was denied; and

on May 5, 2000, she was issued a 7-day suspension

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge (AJ)

or alternatively, to receive a final decision by the agency. Although

complainant requested a hearing, she failed to appear for a scheduled

settlement conference, as well as failing to respond to two Show Cause

Notices issued by the AJ. The AJ therefore returned the complaint to

the agency for a final agency decision.

In its FAD, the agency concluded that complainant that failed to establish

a prima facie case on any basis. The agency further concluded that

even assuming complainant established a prima facie case, she failed

to prove by a preponderance of the evidence that her race, sex or prior

EEO activity, rather than management officials' legitimate explanations,

motivated the actions at issue.

On appeal, complainant reiterates contentions made in her affidavit and

the agency requests that we affirm its FAD.<1>

After a careful review of the record, we find that we are unable to render

a decision on this complaint due to the inadequacy of the investigative

report. The agency is required to develop an impartial and appropriate

factual record upon which to make findings on the claims raised by the

written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual

record is one that allows a reasonable fact finder to draw conclusions as

to whether discrimination occurred. Id. In the case at hand, although

complainant did not specify in her complaint or affidavit that Issue

4 involved the denial of a religious accommodation, throughout the

processing of her complaint she alleged that she was denied leave to

attend a church function. Moreover, the record establishes that she

indicated on the relevant leave request slip that her request was for

religious reasons. In these circumstances, we find that complainant's

failure to label her claim as a denial of religious accommodation should

not have prevented the agency from recognizing Issue 4 as a denial of

religious accommodation claim and conducting an appropriate investigation

on the issue.

Under Title VII, employers are required to accommodate the religious

practices of their employees unless a requested accommodation is shown to

impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1)

(citing Trans World Airlines, Inc v. Hardison, 432 U.S. 63, 74 (1977));

see also McKinney v. Department of the Navy, EEOC Appeal No. 07A10112

(June 27, 2002). Because the agency did not investigate Issue 4 as a

denial of a religious accommodation, we are unable to determine whether,

in denying complainant's request for LWOP, the agency denied complainant a

religious accommodation and/or showed that granting her request would have

imposed an undue hardship. We therefore are unable to draw conclusions

as to whether discrimination occurred.

Accordingly, we find that this complaint must be remanded for

a supplementary investigation. In order to avoid bifurcation of

complainant's complaint, we will not render a decision on the remaining

issues until the supplementary investigation has been completed.

The agency is directed to comply with the ORDER below.

ORDER

The agency is ORDERED to conduct a supplemental investigation which

shall include the following actions:

1. The agency shall ensure that the investigator recognizes that Issue 4

is claim of denial of religious accommodation and obtains supplementary

affidavits from MSC, S1 and S1A on this issue. These agency officials

shall provide detailed explanations as to why complainant was denied

her request for leave to attend a church function.

2. The agency shall ensure that the investigator obtain a supplementary

affidavit from complainant regarding her request for leave to attend a

church function on November 4, 1999. Complainant shall provide testimony

as to whether this request was motivated by a bona fide religious belief,

the practice of which conflicted with her employment, as well as whether

she informed the agency of this belief and conflict, but nevertheless

was denied an accommodation.

3. The agency shall ensure that the investigator obtains any documentary

evidence supporting the supervisors' reasons for failing to grant

complainant's request for leave to attend a church function on November

4, 1999.

4. The agency shall ensure that the investigator obtains any other

affidavits or records not specifically requested in this ORDER, and not

inconsistent with this opinion, which may be relevant in determining

whether complainant was denied a religious accommodation when she was

not granted leave to attend a church function on November 4, 1999.

5. The agency shall acknowledge that it has received the remanded

complaint within fifteen (15) calendar days of the date this decision

becomes final.

6. The agency shall ensure that the investigator completes a supplemental

investigation within ninety (90) calendar days of the date this decision

becomes final. The agency shall then immediately issue to complainant a

copy of the supplemented investigative file. Thereafter, the agency shall

issue a new final agency decision within sixty (60) days. Copies of the

completed supplemental investigation and new final agency decision must

be submitted to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 6, 2003

Date

1 On appeal, complainant did not make any

claim of error related to the AJ's decision to return her complaint to the

agency for a final decision and we will therefore not address this issue.