Damita J. Fulghen, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJun 11, 2009
0120073130 (E.E.O.C. Jun. 11, 2009)

0120073130

06-11-2009

Damita J. Fulghen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Damita J. Fulghen,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120073130

Hearing No. 471-2006-00037X

Agency No. 4J481011305

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's May 30, 2007 final order concerning her equal

employment opportunity (EEO) complaint alleging 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. Complainant alleged that the agency

discriminated against her: (1) on the basis of religion (Jehovah Witness)

when, on or about October 27, 2004, the agency placed complainant in

a non-duty status because she was reading her Bible on the clock and

did not want to work; and (2) on the basis of retaliation for prior EEO

activity when on or about December 21, 2004, the agency issued complainant

a 14-day suspension.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. An AJ's

credibility determination based on the demeanor of a witness or on the

tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

The AJ made the following findings of fact following the hearing in

this case: During the relevant time frame, complainant was employed as

a Customer Service Associate at the Penobscot Postal Store in Detroit,

Michigan. On October 27, 2004, complainant's tour of duty began at 8:00

a.m. and the store opened at 8:30 a.m. When complainant arrived at work,

she discovered that she had forgotten the key to open her till. At that

point she waited for a supervisor to arrive to assist her. Complainant

did not inform anyone that she had forgotten her key. At 9:00 a.m.,

complainant began reading a religious book. At approximately 9:30

a.m., complainant's supervisor (S1) telephoned her. After hanging

up the telephone, complainant completed some work-related tasks and,

at approximately 10:25 a.m., took her morning break and began reading

a religions book.

S1 had learned from an acting supervisor (AS) that complainant was in

the workplace but that she was not working. S1 was working at a remote

location and was leaving for the day, so she called the acting Manager

(AM) to deal with the matter. AM was informed by S1 that complainant

was on the clock and in the break area reading instead of working at the

retail window waiting on customers. AM spoke with AS and learned that

complainant was reading the Bible. AM attempted to reach complainant

by telephone but complainant never answered the calls. AM called the

Postal Police to meet her at the Penobscot facility, indicating that

she thought she would need assistance with an irrational employee.

AM specifically told the Postal Police that complainant was reading

a Bible. AM also told the Postal Police that she needed assistance to

remove complainant from the work place. When she arrived at approximately

10:48 a.m., AM, along with the Customer Service Supervisor (CSS) and

two Postal Police Officers, found complainant sitting at a table with a

book open. As AM approached, she saw what appeared to her to be a Bible.

Complainant became irate that AM had brought the Postal Police. AM told

complainant that she must end her tour and leave if she was not going

to work. Complainant then stated, "You are wrong and you are going to

pay for it! Not only are you going to pay now, but you will also pay

for it later!" AM considered complainant's statement to be threatening

and she informed complainant that she was on emergency placement off

work for the threatening statement. On December 21, 2004, AM issued a

14-day suspension to complainant for the conduct, including specifically

the threatening language toward AM on October 27, 2004.

The AJ concluded that AM's testimony was not credible and that her

behavior at the hearing was an attempt to obscure the truth in the case.

The AJ further concluded that evidence supported the finding that AM made

the decision to remove complainant from the workplace when she learned

that complainant was reading a Bible instead of working. The AJ concluded

that AM was motivated to remove complainant from the work-place in part

because of the fact that she was reading a Bible, which was evidenced by

the statements she made to the Postal Police. The AJ concluded, based

upon the credible testimony provided by the Postal Police, that AM had

made the decision to remove complainant before she arrived at the facility

and that AM emphasized complainant's reading of religious material.

The AJ noted that AM testified that she did not bring the Postal Police to

complainant's work area to have her removed from the building. Rather,

AM stated that she called the Postal Police to have complainant's badge

deactivated. The AJ found this explanation for bringing the Postal Police

not credible. The AJ concluded that in order to believe AM's explanation,

he would have to believe that AM intended to deactivate complainant's

identification badge but leave her in place at the work site. The AJ

did not credit this explanation and concluded that the preponderance

of the evidence shows that AM was motivated, in part, by complainant's

religious activity and her failure to work while on the clock. The AJ

further concluded that the latter is a legitimate factor in her decision

but the former is not. Moreover, the AJ noted that AM testified that

she made the decision to place complainant on emergency placement because

complainant threatened her. However, the AJ concluded that the credible

evidence shows that AM had already made the decision to put complainant

out of the work place before she arrived at the Penobscot facility.

Accordingly, the AJ concluded that AM articulated a legitimate reason

for placing complainant off of the clock, which complainant did not

show as being a pretext for discrimination. Accordingly, because the AJ

concluded that the record established both legitimate and non-legitimate

motives for placing complainant off of work, the AJ determined that a

"mixed motive" analysis was appropriate in this case.

Cases such as this, in which there is a finding that discrimination was

one of multiple motivating factors for an employment action, i.e., in

which the agency acted on both lawful and unlawful reasons, are known as

"mixed motive" cases. See EEOC Revised Enforcement Guidance on Recent

Developments in Disparate Treatment Theory, N-915.002, 21 (July 14, 1992).

Prior to the Civil Rights Act of 1991 (CRA), an employer could avoid

liability in mixed motive cases if it could show that it would have made

the same decision even absent the unlawful factor. See Price Waterhouse

v. Hopkins, 490 U.S. 228, 252 (1989). However, the CRA effectively

overruled the part of Price Waterhouse that allowed an employer to avoid

liability in this way. See 42 U.S.C. � 2000e-2(m); EEOC Compliance Manual,

Section 8: Retaliation (May 20, 1998), at 8-II(E)(1). A complainant

is not required to present direct evidence of discrimination to prove

discrimination was a motivating factor for the employment practices at

issue in mixed motive cases. Desert Palace, Inc. v. Costa, 539 U.S. 90,

101 (2003). Once a complainant demonstrates that discrimination was a

motivating factor in the agency's action, it is the agency's burden to

demonstrate that it would have taken the same action even if it had not

considered the discriminatory factor. If the agency is able to make

this demonstration, the complainant is not entitled to personal relief

(i.e., damages, reinstatement, hiring, promotion, or back pay) but may

be entitled to declaratory relief, injunctive relief, attorney's fees,

and/or costs. See Walker v. Social Security Administration, EEOC Request

No. 05980504 (April 8, 1999); Dearmas v. Department of the Treasury,

EEOC Appeal No. 0720060085 (July 26, 2007).

Here, the AJ concluded that the preponderance of evidence established

that AM would have taken the same action even if she had not considered

the discriminatory factor. The AJ also concluded that complainant's

statement to AM that she would pay for her actions constituted a threat.

In addition, the AJ noted that since that threat was made after AM had

already made her decision to place complainant off duty, the evidence

is after-acquired. Moreover, the AJ concluded that the probative

evidence in the case establishes that the agency would normally place

an employee who makes a threat in a non-duty status. Accordingly, the

AJ concluded that while the agency is liable for discriminatory conduct,

its liability is limited.1

With respect to the second claim, the AJ concluded that complainant

was not able to show by a preponderance of the evidence that the agency

retaliated against her by issuing her a 14-day suspension because she has

failed to come forward with evidence to show that the agency's reason

for suspending her was a pretext for discrimination. Specifically,

the AJ noted that the agency proffered credible evidence to establish

that it suspended complainant for threatening AM. The AJ concluded

that complainant had not presented sufficient evidence showing that

management's articulated reason was false or was motivated by retaliatory

motives. Therefore, the AJ concluded that complainant did not prove

that the agency retaliated against her by issuing the 14-day suspension.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the final agency order because

the Administrative Judge's ultimate finding that the agency discriminated

against complainant, in part, is supported by the substantial evidence

of record, as set forth above.

ORDER

The agency is ordered to take the following action within thirty (30)

days of the date this decision becomes final:2

(1) The agency shall take corrective, curative and preventive action

to ensure that discrimination does not recur. This includes, but is

not limited to, providing training to the relevant management officials

(i.e., AM), regarding her responsibilities with respect to eliminating

discrimination in the federal workplace. The training must place a

special emphasis on the agency's obligations under Title VII.

(2) The agency shall consider taking appropriate disciplinary action

against the responsible management official, i.e., AM. The Commission

does not consider training to be disciplinary action. The agency shall

report its decision to the compliance officer. If the agency decides

to take disciplinary action, it shall identify the action taken.

If the agency decides not to take disciplinary action, it shall set

forth the reason(s) for its decision not to impose discipline. If the

responsible management official has left the agency's employ, the agency

shall furnish documentation of his departure date.

(3) 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 verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Penobscot Postal Store in Detroit,

Michigan 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 (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 (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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. 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 (Z1008)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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

June 11, 2009

Date

1 See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995)

(holding that an employer who discriminates when discharging an employee

is liable even if the employer subsequently discovers evidence of

wrongdoing that would have led to the employee's termination on legitimate

grounds); see also EEOC Enforcement Guidance on After-acquired evidence

and McKennon v. Nashville Banner Publishing Co. (McKennon Guidance)

(December 14, 1995)(interpreting McKennon and noting that even where the

agency proves that it would have taken the same or more harsh adverse

action had it known of the employee misconduct, complainant will still be

entitled to relief, but that relief may be subject to some limitations).

2 Pursuant to the mixed-motive and after-acquired evidence analyses

set forth above, the AJ concluded that complainant is not entitled to

personal relief, including back pay or compensatory damages.

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0120073130

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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