01970559
09-09-1999
Cheryl L. Long, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Allegheny/Mid-Atlantic Region Agency.
Cheryl L. Long, )
Appellant, )
) Appeal No. 01970559
v. ) Agency No. 1C-441-1067-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Allegheny/Mid-Atlantic Region )
Agency. )
)
)
DECISION
Cheryl Long (hereinafter appellant) filed a timely appeal from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the basis of reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when: (1)
her supervisor subjected her to rude looks and unnecessary comments;
and (2) she was issued a letter of warning for failure to follow
instructions and for being absent without leave (AWOL) on February 12,
1996. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as an Optical Character Reader (OCR) Clerk at the agency's Cleveland,
Ohio facility.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on April 19,
1996. At the conclusion of the investigation, appellant was informed
of her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency.
When appellant failed to respond within the time period specified in
our Regulations, the agency issued a final decision.
In its FAD, the agency concluded that appellant failed to establish a
prima facie case of retaliation when she failed to present evidence
that she had engaged in protected activity, when she failed to show
that her supervisor knew of her protected activity and because the
complaint in which she was a witness was settled during the counseling
stage on February 5, 1996. In addition, the agency concluded that
it had legitimate non-discriminatory reasons for giving her a letter
of warning, namely that she had required more supervision because
she left her assignments without authorization, extended her breaks
and excessively engaged in conversations with her fellow employees.
The agency claimed that Appellant was informed about her deficiencies
but did not improve. Finally on February 15, 1996, she was absent from
her assignment without authorization for 45 minutes.
On appeal, appellant contends that on the day in question she was not
absent from her assignment because she and her co-workers had not been
on their regular assignment, the bar code sorter (BCS) all day due to
the lack of mail. As a result Supervisor 2 sent them to the "primary."
Appellant contends that she went to lunch late that day because the
employee who relieved her was late returning from her lunch. This was
the reason she was in the cafeteria later in the day.
The agency still contends that appellant did not refute its legitimate
non-discriminatory reason for giving her a letter of warning which,
it points out, was corroborated by another supervisor.
Applying the standards set forth in McDonnell Douglas Corporation
v. Green, 411, U.S. 792 (1973), Texas Department of Community Affairs v.
Burdine, 450 U.S.248 (1981), United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711,(1983) 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 McDonnell
Douglas to reprisal cases), we find that contrary to the agency's
conclusion, appellant did establish a prima facie case of reprisal
discrimination because she established that by giving a statement in a
co-worker's EEO complaint, she had engaged in protected EEO activity;
she established that her supervisor (Supervisor 1) most likely knew
about her involvement because she was the responsible management official
against whom the complaint had been filed; and lastly, Supervisor 1 was
also responsible for settling the co-worker's complaint which indicates
her probable knowledge of the statements given by witnesses.
We also find, contrary to the agency's conclusion, that the agency's
reasons are a pretext for discriminatory animus toward the appellant
because of her prior EEO activity. In reaching this conclusion, we note
that the agency did not directly address the appellant's specific details
about her whereabouts that she gives on appeal which were corroborated by
another employee. Instead, the agency merely restates, unconvincingly,
that appellant failed to dispute its non-discriminatory reasons for giving
appellant a letter of warning. The agency also failed to produce any
credible evidence that appellant had a history of recalcitrant behavior
or poor work performance.
Two employee witnesses stated that Supervisor 1 singled out appellant and
treated her differently from the other employees. One witness concluded
that appellant was singled out because she was a friend of the employee
who had filed an EEO complaint against her. In addition, not only did
appellant give testimony against Supervisor 1 but she sent copies of
her statement to two other management officials, the plant manager, the
postal Inspector and the Postmaster, thereby heightening the visibility
of her complaint and perhaps further angering Supervisor 1. Finally,
we are persuaded of the connection between appellant's EEO activity
and the harsher discipline she received because Supervisor 1 testified
that she has not given similar discipline to anyone else for the same
behavior, and other employees she had only had verbal discussions with
"had not filed any EEO's."
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's final
decision and REMAND this case to the agency to take remedial actions in
accordance with this decision and order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall rescind the letter of warning given to appellant
on or about February 15, 1996 and shall expunge all agency records which
make reference to the letter of warning or references to any disciplinary
actions in general taken against appellant related to the incident on
February 15, 1996.
2. The agency is directed to conduct at least eight hours training
for the appellant's supervisor (Supervisor 1) who was found to have
discriminated against appellant by taking actions of reprisal against
her for engaging in protected EEO activity.
3. The agency shall take appropriate preventative steps to ensure
that no employee is subjected to reprisal at its General Mail Facility,
Cleveland, Ohio;
4. 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 corrective actions.
POSTING ORDER (G1092)
The agency is ORDERED to post at its General Mail Facility, Cleveland,
Ohio, 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.
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.
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/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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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:
9/09/99
DATE Carlton Hadden, Acting Director,
Office of Federal Operations