01994100
02-22-2000
Cecil M. Shofner, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cecil M. Shofner, )
Complainant, )
) Appeal No. 01994100, 01993790
) Agency No. 4H350118796, 4H350012399
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The complainant filed two independent formal complaints with his agency
alleging unlawful employment discrimination. The complainant argues,
in both complaints, that he was discriminated against in reprisal
for his previous, protected, EEO activity, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq.<1> Dissatisfied with his agency's final decisions, the complainant
initiated timely appeals to the Commission. We accept these appeals in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. �1614.405) and we consolidate them pursuant to 64 Fed. Reg.37644,
37661(1999)(to be codified at 29 C.F.R.�1614.606).
The record reveals that during the relevant time, complainant was
employed as the Postmaster at the agency's Alabama district facility.
Complainant's supervisor, the acting manager of post office operations,
issued a letter dated April 2, 1996. The letter, referred to as a
�letter of direction,� was placed in the complainant's file.
The issuance of the letter of direction, itself, brought about the first
complaint, filed on July 22, 1996 (Agency Case No. 4H350118796, Appeal
No. 01994100)(Complaint No. 1). The second complaint was filed on March
1, 1999 (Agency Case No. 4H350012399, Appeal No. 01993790)(Complaint
No. 2), after the agency refused to remove the letter of direction
from the complainant's file. After investigating the first complaint,
the agency found no discrimination. The agency dismissed the second
complaint for failure to state a claim. We will now consider whether
the agency erred in its determinations.
Complaint No. 1
After an investigation, the agency found that the complainant failed
to prove retaliation when he was issued the letter of direction.
In order to prevail on a claim of retaliation, the appellant must
initially establish a prima facie case. The elements of a reprisal prima
facie case include: (1) engagement in prior protected EEO activity;
(2) subjection to an adverse employment action; (3) awareness of such
activity by the responsible agency official; and (4) the adverse action
must follow the protected activity at such a time or in such a manner
as to permit an inference of retaliatory motivation. Wrenn v. Gould,
808 F.2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,
790 (D.C. Cir. 1984); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46
(2d Cir. 1980); Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.) aff'd 545 F.2d 222
(1st Cir. 1976).
The agency's final decision concedes that the complainant engaged in
protected activity, that he was subjected to an adverse action, and that
the responsible agency official was aware of his prior protected activity.
The record also indicates that complainant had a pending, EEO related case
pending at the time the letter of decision was issued. We therefore find
that the complainant has made a prima facie showing of discrimination.
Having made a prima facie case of discrimination, the burden of production
shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. McDonnell Douglas Corporation v. Green, 411
U.S. 792, 802 (1973). The agency maintains that the letter of direction
addressed a specific incident of misconduct, and was designed to apprize
the complainant of his supervisor's expectations. According to the
agency, the letter of direction served the legitimate aim of preventing
misunderstanding.
Having articulated a legitimate reason for issuing the letter of
direction, the burden shifts back to the complainant to demonstrate that
the agency's stated reason is pretext for discrimination. The complainant
has failed to produce creditable evidence that the agency's stated
reasons are pretext for discrimination. The complainant does not provide
evidence which will rebut the agency's stated reasons for issuing the
letter of direction. Complainant does not rebut the agency's need
to make expectations clear nor does complainant rebut the underlying
facts which lead to the issuance of the letter of direction. Nor has
complainant produced a comparison employee who was treated differently
under similar circumstances. We find that complainant failed to prove,
by a preponderance of the evidence, that he was discriminated against
in retaliation for protected activity. Accordingly, we affirm the
agency's finding of no discrimination, as to the issuance of the letter
of direction.
Complaint No. 2
We must also consider complainant's contention that he was retaliated
against when the agency refused to remove the letter of direction from
complainant's file. The agency dismissed this complaint because it
failed to state a claim. In support thereof, the agency maintains that
the complainant is not aggrieved and that he states a claim that has
already been decided. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides,
in relevant part, that an agency shall dismiss a complaint, or portion
thereof, that fails to state a claim. An agency shall accept a complaint
from any aggrieved employee or applicant for employment who believes that
he or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition. 29
C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 22, 1994). After reviewing the
letter of decision, noting that the letter has remained in the file for
over two years, considering the negative impact that a letter of this
type could have on future promotional opportunities and considering the
possible impact of the letter on future evaluations, we find that the
refusal to remove the letter could effect a personal loss, which would
render the complainant aggrieved.
The agency also dismissed appellant's complaint for stating the same claim
raised in a prior complaint. 64 Fed. Reg. 37644, 37656 (to be codified
at 29 C.F.R. �1614.107(a)(1)) provides that the agency shall dismiss a
complaint or a portion of a complaint that states the same claim that
is pending before or has been decided by the agency or Commission. It
has long been established that "identical" does not mean "similar." The
Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical
to the elements of the prior complaint in time, place, incident and
parties. See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
After reviewing both complaints #4-H-350-1187-96 (issuance of letter
of direction) and complaint #4-H-350-0123-99 (refusal to expunge the
letter of direction) we find them to be different. Agency's denial of
complainant's request to expunge his file of the letter was a separate
agency action, occurring more than two years after the letter itself
was issued. While both complaints involve the same letter of direction,
they implicate two distinct agency actions. We therefore find that the
complaints are not identical within the meaning of the regulations.
Accordingly, we reverse the dismissal by the agency of the complaint as
it relates to the failure of the agency to expunge complainant's file
of the letter of direction.
ORDER (E1092)
The agency is ORDERED to process the remanded claim, Agency Case
No.4H350012399, in accordance with 64 Fed. Reg. 37,644, 37,656-57
(1999)(to be codified and hereinafter referred to as 29 C.F.R. �1614.108).
The agency shall acknowledge to the complainant that it has received the
remanded claim within thirty (30) calendar days of the date this decision
becomes final. The agency shall issue to complainant a copy of the
investigative file and also shall notify complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior
to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
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 (M1199)
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). 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 (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
2/22/2000
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 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.