Dennis J. Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 17, 2000
01a02620 (E.E.O.C. Apr. 17, 2000)

01a02620

04-17-2000

Dennis J. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dennis J. Smith v. United States Postal Service

01A02620

April 17, 2000

Dennis J. Smith, )

Complainant, )

) Appeal No. 01A02620

v. ) Agency No. 4C-430-0040-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

Complainant alleges that he was discriminated against on the basis of

reprisal (prior EEO activity)<2> when on November 18, 1998, complainant's

request for eight (8) hours of elective leave was denied. For the

following reasons, the Commission VACATES and REMANDS the agency's

final decision.

The record reveals that during the relevant time, complainant was employed

as a Carrier Technician at the agency's Mount Vernon, Ohio Post Office.

Complainant had used all of the allotted elective leave days and wanted

to change one of his previously used elective leave days to annual leave.

The reason he wanted to change the type of leave that was used is because

he was informed by co-workers that they were allowed to make such a

change. Complainant's supervisor denied the request to change the type

of leave he had used and denied complainant's request for elective leave

because he had already used his allotted elective leave days. Believing

he was the victim of discrimination, complainant sought EEO counseling

and, subsequently, filed a formal complaint on February 16, 1999.

At the conclusion of the investigation, complainant was provided a copy

of the investigative file and informed of his right to request a hearing

before an EEOC Administrative Judge or alternatively, to receive a final

decision by the agency. Complainant failed to request a hearing, and

the agency therefore issued a final decision finding no discrimination.

In its final decision, the agency concluded that complainant failed to

establish a prima facie case of retaliation, noting that complainant

failed to establish a nexus between his protected activity and the

agency's adverse action. The final decision then concluded that the

agency proffered legitimate, nondiscriminatory reasons for its actions,

namely, that complainant had used all of his elective leave and was

not eligible for elective leave.<3> The final decision also noted that

complainant failed to show that the agency's reasoning was a pretext

for discrimination.<4> Finally, the final decision concluded that

complainant failed to demonstrate by a preponderance of the evidence

that he was discriminated against under any of his alleged bases.

On appeal, complainant contends, among other things, that the EEO

investigators did not interview complainant's witnesses to show that his

supervisor had indeed changed elective leave to annual leave for those

individuals outside of his protected class. The agency stands on the

record and requests that we affirm its final decision.

After a thorough review of the record, we find that the evidence is

insufficient to allow a determination on the merits of complainant's

claims of discrimination under any of complainant's alleged bases.

Our regulations and the EEOC Management Directive (MD) 110, as revised,

November 9, 1999 for 29 C.F.R. Part 1614 require agencies to develop

a complete and impartial factual record. See 64 Fed. Reg 37,644,

37,656-57 (1999) (to be codified and hereinafter referred to as 29

C.F.R. � 1614.108(b)) and Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 6-1 (November 9, 1999).

Upon review, we find that information which would buttress or rebut the

agency's stated reasons, such as affidavits from complainant's co-workers,

who allegedly had their leave changed from elective leave to annual leave,

were not included in the record. See Tyndall v. Veterans Administration,

EEOC Appeal No. 01944524 (September 20, 1995).

We therefore VACATE the agency's finding of no discrimination, and

REMAND this matter for a supplemental investigation in accordance with

the following ORDER, and the applicable EEOC Regulations.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

1. The agency shall ensure that the investigator obtains affidavits from

the co-workers complainant names as comparatives and determine if these

individuals, as complainant contends, had their elective leave changed

to annual leave after the leave was taken.

2. The agency shall ensure that the investigator obtain any other

affidavits, records or statistics not specifically requested in this

ORDER, and not inconsistent with this opinion, which may be relevant in

determining the veracity of complainant's complaint allegations.

3. The agency shall ensure that the investigator complete a supplemental

investigation within one-hundred and twenty (120) calendar days of

the date this decision becomes final. Thereafter, the agency shall

provide the complainant, within thirty (30) calendar days from the date

the agency completes the supplemental investigation, an opportunity to

respond to the supplemental investigative report. The agency shall then

take any action appropriate and consistent with complainant's response,

and issue a new final agency decision within thirty (30) calendar days of

complainant's response or, if complainant fails to respond, within thirty

(30) calendar days following the last day complainant would have been

permitted to respond. Copies of the completed supplemental investigation

and new final agency decision must be submitted 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 (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 17, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

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.

2The record indicates that complainant filed Agency Nos. 4C-430-0106-97

and 4C-430-0117-97.

3The agency relied on an affidavit provided by complainant's supervisor

in which she stated that she never permitted any individual to change

their used elective leave to annual leave after the leave was taken.

4Complainant argued that the supervisor's statement was false and that

she had previously changed the type of leave co-workers had taken but

refused to approve his request because of his EEO activity.