05a00041
04-21-2000
Cheryl L. Long, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.
Cheryl L. Long v. United States Postal Service
05A00041
April 21, 2000
Cheryl L. Long, )
Complainant, )
) Request No. 05A00041
v. ) Appeal No. 01970559
) Agency No. 1C-441-1067-96
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On 10/13/99, the United States Postal Service (agency) initiated a
request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Cheryl L. Long v. United States Postal
Service, EEOC Appeal No. 01970559 (9/9/99).<1> EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.405(b)).
The party requesting reconsideration must demonstrate one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. The agency's request is denied.
In its request, the agency argued that the prior decision involved
a clearly erroneous interpretation of law or fact when we found that
complainant established a prima facie case of reprisal discrimination,
and that the agency's reason for issuing a Letter of Warning was a
pretext for reprisal discrimination. Specifically, the agency argued
the prior decision erred because: (1) complainant failed to establish
that her supervisor was aware of her prior EEO activity when she issued
the Letter of Warning; (2) complainant failed to establish the requisite
causal nexus between her prior EEO activity and the discipline; and (3)
the prior decision failed to consider an affidavit which supported the
discipline and corroborated the supervisor's testimony that complainant
had a history of behavior cited in the Letter of Warning.
With respect to the agency's argument that the supervisor was not aware
of complainant's prior EEO activity, we note that in order to establish
a prima facie case of discrimination, a complainant must prove --by a
preponderance of the evidence--that the agency took action against her
which, if unexplained, would give rise to an inference of discriminatory
motive or intent. Furnco Construction Corp. v. Waters, 438 U.S. 567,
579-80 (1978). A prima facie case of retaliation is established where
appellant has produced sufficient evidence to show that: (1) she engaged
in protected activity; (2) the agency was aware of her participation in
the protected activity; (3) she was subjected to an adverse employment
action; and (4) a nexus exists between the protected activity and
the agency's adverse action. Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976); Van Druff v. Department of Defense, EEOC
Appeal No. 01962398 (February 1, 1999).
The prior decision found that the supervisor "most likely" knew that
complainant was a witness in her friend's EEO complaint. Specifically,
the prior decision noted that the friend's complaint was filed against
the same supervisor as in the instant complaint, and was filed in
the same time period as the instant complaint. Most importantly,
however, the prior decision relied on letters complainant circulated to
management officials in the supervisor's chain of command that referenced
complainant's assistance in the friends' EEO complaint. Although the
supervisor generally denied awareness of complainant's prior EEO activity
in her affidavit, we find the prior decision made no clear error when
it found the supervisor was aware of complainant's prior EEO activity.
The preponderance of the evidence supports complainant's assertion that
the supervisor was aware of the letters she wrote in support of her
friend's EEO complaint.
The agency also argues in its request that complainant failed to establish
a nexus between her prior EEO activity and the Letter of Warning.
The prior decision found this nexus in the supervisor's testimony wherein
she acknowledged she has not issued discipline against other employees
for failing to leave their assignment without authorization, as she did
in the instant complaint. The agency argues that although the supervisor
acknowledged this, complainant's behavior was worse than other employees
not disciplined for similar behavior. Despite the agency's position in
this regard, we find no such showing in the record, and thus, we cannot
concur with the agency's argument that the prior decision erred.
Finally, the agency argues that the prior decision erred when it failed to
acknowledge an affidavit in the record which supported the supervisor's
testimony that she issued the Letter of Warning because complainant was
not at her assigned workstation. Despite the prior decision's failure to
specifically reference the affidavit, it does not necessarily follow that
it was not considered along with other evidence in the record. After a
review of the affidavit, we note that the bulk of the testimony in the
affidavit that supports the basis for the discipline was based on the
observations of others. Furthermore, although the supporting affidavit
referenced that complainant engaged in this type of behavior in the past,
the agency failed to introduce any other documentary evidence in support
of their position. Finally, the affidavits of complainant's co-workers,
who testified that the supervisor retaliated against complainant, were
credited by the prior decision. We find no clear error in the prior
decision in this regard.
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds the agency's request
does not meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the agency's request. The decision
of the Commission in EEOC Appeal No. 01970559 remains the Commission's
final decision. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall rescind the letter of warning given to complainant on
or about February 15, 1996, and shall expunge all agency records that
make reference to the letter of warning or references to any disciplinary
actions in general taken against complainant related to the incident on
February 15, 1996.
The agency is directed to conduct at least eight hours training for
complainant's supervisor (referenced as "Supervisor 1" in the prior
decision) who was found to have discriminated against complainant by
taking actions of reprisal against her for engaging in protected EEO
activity.
The agency shall take appropriate preventative steps to ensure that
no employee is subjected to reprisal at its General Mail Facility,
Cleveland, Ohio.
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, facility 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 (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).
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 21, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.