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.