Cheryl L. Long, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionApr 21, 2000
05a00041 (E.E.O.C. Apr. 21, 2000)

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.