01975319
03-28-2000
Eddie B. Campbell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Eddie B. Campbell v. United States Postal Service
01975319
March 28, 2000
Eddie B. Campbell, )
Complainant, )
) Appeal No. 01975319
v. ) Agency No. 4D230128796
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of sex (male) and age (over 50) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age
Discrimination in Employment Act of 1967 (ADEA), et seq.<1> Complainant
alleges that he was discriminated against when the agency denied him
variable pay on June 5, 1996. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the Commission VACATES
the FAD and REMANDS the complaint for a supplemental investigation.
The record reveals that during the relevant time, complainant was
employed as an EAS-11 Postmaster at the agency's Singers Glen, Virginia
(VA) facility. Complainant alleged that the agency investigated his
alleged relationship with a subordinate worker. The details of the
sexual harassment investigation are not available in the record. However,
the agency and the complainant agreed that he would accept a downgraded
Postmaster position at the Singers Glen, VA facility. This agreement
(which is in the record) settled the sexual harassment complaint.
After the complainant was transferred, the agency denied him variable
pay because of the downgrade.
Believing he was a victim of discrimination, complainant sought
EEO counseling. In the informal complaint, the complainant alleged
discrimination on the bases of sex (male), age (50+), and reprisal (prior
EEO activity). After informal efforts to resolve his concerns failed,
he filed a formal complaint on August 3, 1996. However, in the formal
complaint, he did not allege reprisal discrimination. The complainant
did not allege this basis again until the pre-hearing conference on April
10, 997. At the conclusion of the investigation, complainant requested
a hearing before an EEOC Administrative Judge. After discovery, the
complainant withdrew his request for a hearing and requested that the
agency issue a FAD. At that time, the administrative judge ordered the
case dismissed and stipulated that the record would be kept open for
a period of time so that reprisal discrimination could be addressed.
During this open period, the complainant did not formally amend the
complaint, but he did allege reprisal discrimination by the manager
of operations. The agency issued a FAD on sex and age discrimination
only. The agency has requested that the Commission remand the reprisal
discrimination complaint for investigation.
The FAD concluded that complainant failed to establish a prima facie case
of sex or age discrimination. According to the agency, the complainant
did not prove that similarly situated individuals who were outside of his
protected classes were treated differently under similar circumstances.
On appeal, complainant contends that the agency failed to consider a
number of his arguments. Specifically, the complainant argues that
the agency failed to address his claims of reprisal discrimination.
The agency requests that we affirm its FAD in part and remand the reprisal
discrimination matter back to the agency.
We find that the agency has not investigated the complainant's allegations
of reprisal discrimination raised May 21, 1997. Specifically, the
agency has not addressed complainant's claim that his second-line
supervisor (S2), who was the manager of agency operations, told him she
would retaliate against him for his prior EEO activity and that she,
therefore, instructed his first-line supervisor (S1) to exclude him from
the variable pay program. According to complainant, on October 23,
1995, S2 stated that he would get what he deserved and that she would
see to it. The agency did not submit affidavits from agency officials
with relevant knowledge about this telephone conversation. Given that
there is no investigation into this matter, we are unable to determine
reprisal discrimination. Therefore, the Commission will vacate the FAD
in its entirety. Consequently, we will not address the issues of sex
and age discrimination at this point in processing the complaint.
Moreover, based on the above, the Commission concludes that this record
lacks the necessary information upon which to adequately determine if
the agency's action was lawful. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R � 1614.404).
Our regulations require agencies to develop an appropriate and impartial
factual record. See 29 C.F.R. � 1614.108(b). We therefore VACATE the
FAD and REMAND the complaint for supplemental investigation in accordance
with the following ORDER and applicable regulations.
ORDER
The agency is ORDERED to complete the following actions:
1. The agency shall process the remanded claim concerning reprisal
discrimination in accordance with 29 C.F.R. � 1614.108.
2. During the supplemental investigation of the above basis, we ORDER the
agency to obtain an affidavit from the Manager of Agency Operations which
directly responds to complainant's claims discussed above. Complainant
shall be afforded the opportunity to submit a rebuttal affidavit.
3. The agency shall acknowledge to complainant that it has received
the remanded complaint within fifteen (15) calendar days of the date
this decision becomes final.
4. The agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. Thereafter, the agency shall issue a new FAD pursuant to
29 C.F.R. � 1614.109(b). This new FAD will address complainant's entire
complaint including his claims of reprisal, sex, and age discrimination,
as noted in paragraph 1 of this order.
5. A copy of the agency's letter of acknowledgment to complainant,
a copy of the notice that transmits the investigative file and notice
of rights, and a copy of the completed supplemental investigation must
be sent 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).
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:
03/28/00
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 Equal Employment Assistant
1 On 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.