Eddie B. Campbell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 28, 2000
01975319 (E.E.O.C. Mar. 28, 2000)

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.