01973491
05-18-2000
Ella R. Randolph, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.
Ella R. Randolph v. United States Postal Service
01973491
May 18, 2000
Ella R. Randolph, )
Complainant, )
) Appeal No. 01973491
v. ) Agency No. 1C-441-1109-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the bases of reprisal (prior EEO activity) and physical disability
(bi-lateral carpal tunnel syndrome, fibromyolgia and tendinitis), in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges she was
discriminated against when her 1993 absence analysis, PS Form 3972,
was improperly annotated with absences charged to leave without pay
(LWOP) and absence without leave (AWOL); and when she became aware of the
improper annotations in January of 1995 and so informed the agency, the
agency failed to correct her attendance records. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is REVERSED.
The record reveals that during the relevant time, complainant was employed
as a PS-6 Distribution Clerk at the agency's John O. Holly facility in the
Cleveland, Ohio district. Believing she was a victim of discrimination
as referenced above, complainant sought EEO counseling and subsequently
filed a formal EEO complaint on July 9, 1995. After the agency dismissed
complainant's complaint for failure to state a claim, complainant appealed
and the Commission vacated and remanded the agency's decision. See
Randolph v. United States Postal Service, EEOC Appeal No. 01956614 (March
18, 1996) (Randolph I). The Commission found that because complainant's
allegations concerned errors in her personnel records which could impact
computation of retirement, hours of leave and other benefits, such errors
could affect her conditions of employment, and she thus stated a claim
of discrimination under the Commission's regulations. Id.
Thereafter, complainant's EEO Counselor conducted an investigation,
gathering affidavits from complainant and a Senior Personnel Specialist
(SPS). In her affidavit, complainant alleged that because of her
disabilities and prior EEO activity, she was improperly charged
with LWOP between October 23, and November 1, 1993, and that she was
improperly charged with AWOL between November 2, and December 8, 1993.
Complainant argued that AWOL and LWOP are not considered work time, and
her retirement, leave and other benefits would be adversely affected.
Complainant also alleged that the agency acknowledged the timekeeping
errors to her and, despite assurances that these errors would be
corrected, no such action has occurred. Complainant named her supervisor
(SUPVR), the former Manager of Distribution Operations (MDO) who works
in a safety position, and the facility Postmaster (PM) as the alleged
discriminating officials. In response, the Counselor/Investigator
obtained a two-sentence affidavit from the SPS, who stated that pursuant
to section 582.4 of the Employee Labor Manual (ELM), employees in an
LWOP status receive full credit toward retirement while an employee is
receiving benefits from the Office of Workers Compensation Programs
(OWCP). The affidavit from SPS did not address benefits other than
retirement, and it did not address whether or not employees in AWOL
status receive full credit toward retirement.
Other than noting that complainant has filed numerous EEO complaints,
no other information concerning her prior EEO activity was obtained by
the EEO Counselor/Investigator. Neither the SUPVR, MDO or PM provided a
statement explaining why complainant was placed in an LWOP and AWOL status
during the time she was receiving OWCP benefits, or why the agency failed
to correct her time records when, according to complainant, the errors
were brought to its attention. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and informed
of her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant did
not respond, and pursuant to the applicable regulation, the agency issued
a FAD.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of retaliation, noting that she demonstrated no nexus
between her prior EEO counseling in October of 1994 on an unrelated
matter, and her EEO counseling on the instant matter in February of
1995, four months later. The agency opined that a four month time
lapse was insufficient to establish a nexus between her prior EEO
activity and the instant case. In reaching this conclusion, the agency
cited two federal district court decisions and a decision from the
seventh circuit, all dating back to the early 1990's. The agency then
concluded that complainant failed to establish a prima facie case of
disability discrimination because she failed to present evidence that
her physical impairments substantially limited a major life activity,
and she also failed to demonstrate that similarly situated non-disabled
individuals were treated more favorably. Finally, the agency concluded
that it articulated a legitimate, nondiscriminatory reason for its
action, namely, that when an employee receives benefits from OWCP, such
periods of time are not deemed breaks in service pursuant to the ELM,
even if an employee is in an LWOP status, and thus complainant would
receive credit toward retirement. The FAD concluded that complainant
failed to demonstrate by a preponderance of the evidence that she was
discriminated against under either of her alleged bases. On appeal,
complainant raises similar arguments to those she raised to the agency,
and the agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973), St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993),
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), we find, contrary to
the FAD, that complainant established a prima facie case of retaliation.
In reaching this conclusion, the Commission first notes that the agency's
argument that there is no nexus between her October of 1994 EEO counseling
and her February of 1995 EEO activity on the instant matter is misplaced.
The alleged discriminatory acts by SUPVR, MDO and PM, of improperly
placing her in an LWOP and AWOL status while she was receiving OWCP
benefits, occurred between October and December of 1993. Thus, the
agency should have considered the nature and extent of complainant's
prior EEO activity around the time she was improperly placed in an LWOP
and AWOL status, and not at the time she discovered the errors in her
time and attendance records.
In applying the above-referenced analysis, a review of Commission
records concerning complainant's EEO activity reveals that she engaged
in a significant amount of EEO activity from the late 1980's to the
present.<2> Moreover, on August 26, 1993, the Commission issued Randolph
v. United States Postal Service, EEOC Appeal No. 01933429 (August 26,
1993) (Randolph II). In Randolph II, we held that the agency breached
a settlement agreement with complainant, and we ordered the agency to
take certain actions to remedy its breach. The decision in Randolph II
was issued only two months prior to the alleged retaliatory acts between
October and December of 1993.<3> More recent Commission precedent than
the authority relied on by the agency demonstrates that complainant
established the requisite nexus between her prior EEO activity and her
having been improperly placed in an LWOP and AWOL status between October
and December of 1993. See Coffman v. Department of Veterans Affairs,
EEOC Request No. 05960473 (November 20, 1997)(ten month period between
prior EEO activity and alleged discriminatory act not too attenuated so
as to establish a retaliatory motive); Patton v. Department of the Navy,
EEOC Request No. 05950124 (June 27, 1996)(generally, a nexus between
prior EEO activity and an alleged discriminatory act may be shown if
the events occurred within one year of each other).
Having established a prima facie case of retaliation, the burden of
proof shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its action. McDonnell Douglas, 411 U.S. at 802-04. The
agency may rebut the presumption of discrimination by clearly setting
forth, through the introduction of admissible evidence, its reasons
for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 254-255 (1981). The agency's burden to articulate a
legitimate, nondiscriminatory reason for its action need only be
sufficiently clear to raise a "genuine issue of fact" as to whether
discrimination occurred. Id. at 254. It merely "frame[s] the factual
issue with sufficient clarity so that [appellant] will have a full
and fair opportunity to demonstrate pretext." Id. at 255-256; Parker
v. United States Postal Service, EEOC Request No. 05900110 (April 30,
1990) (citing Burdine, 450 U.S. at 256); see also Hammons v. Department of
Housing and Urban Development, EEOC Request No. 05971093 (March 5, 1999).
The Commission finds, however, that contrary to the FAD, the agency failed
to articulate a legitimate, nondiscriminatory reason for its actions.
In reaching this conclusion, the Commission notes that the agency's
reliance on a statement by the SPS is both misplaced and wholly inadequate
to explain the agency's actions. First, the statement by SPS does not
explain why complainant was improperly placed in an LWOP and AWOL status
in the first instance, or why the agency failed to correct mistakes
in complainant's record when brought to its attention. Moreover, this
statement did not address benefits other than retirement, and it did
not address whether or not employees in AWOL status receive full credit
toward retirement. The statement by SPS appears to be nothing more than
a second attempt by the agency to argue that complainant was not harmed
by the agency's actions. However, the Commission already determined in
Randolph I that complainant stated a claim of discrimination under our
regulations. See supra Randolph I.
As SPS did not articulate a legitimate, nondiscriminatory reason, the
Commission next notes that the agency failed to provide an explanation
from either the SUPVR, the MDO, or the PM to rebut complainant's
allegation that she was placed in an LWOP and AWOL status for
discriminatory reasons, or to explain why the agency failed to correct her
attendance records once the error was discovered. As the Supreme Court
has stated, the function of the prima facie case is to compel the employer
to "'produce evidence that the adverse employment actions were taken'
for a legitimate, nondiscriminatory reason." See Hicks, 509 U.S. at 507
(quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
254 (1981)). The agency has produced no statement to explain why,
in the first instance, complainant was improperly placed in an LWOP or
AWOL status. The agency also failed to produce any explanation to rebut
complainant's assertion that once made aware of these errors, the agency
nonetheless failed to correct the mistakes to her time and attendance
records. Having failed to meet its burden of production by introducing
any evidence to rebut complainant's prima facie case of retaliation,
the Commission concludes that complainant has established that she was
a victim of retaliation.<4> See Hicks, 509 U.S. at 509. See also Lebron
v. United States Postal Service, EEOC Appeal No. 01943052 (January 19,
1996); Brooks v. United States Postal Service, EEOC Request No. 05930625
(May 19, 1994). Finally, complainant alleged compensatory damages in
her complaint, and consistent with this decision and ORDER below, the
agency shall conduct an expedited investigation as to her entitlement,
if any, to compensatory damages.<5>
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the FAD and
REMAND this case to the agency to take remedial actions in accordance
with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) days of the date this decision becomes final, the
agency shall correct complainant's time and attendance, and any other
applicable records, so that all applicable records reflect that she
was receiving benefits from the Office of Workers Compensation Programs
during the relevant time. Therefore, complainant should not be charged
with LWOP between October 23, and November 1, 1993, or with AWOL between
November 2, and December 8, 1993.
The agency shall conduct an expedited supplemental investigation on the
issue of complainant's entitlement to compensatory damages and shall
afford complainant an opportunity to establish a causal relationship
between the agency's actions and any pecuniary or non-pecuniary
losses. See West v. Gibson, 527 U.S. 212 (1999); Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998). The complainant shall cooperate in the agency's efforts
to compute the amount of compensatory damages, and shall provide all
relevant information requested by the agency. The agency shall issue a
final decision on the issue of compensatory damages. 64 Fed. Reg 37,644,
37,657-58 (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.110 (1999). The supplemental investigation and issuance of
the final decision shall be completed within one hundred and twenty (120)
calendar days of the date this decision becomes final. A copy of the final
decision must be submitted to the Compliance Officer, as referenced below.
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its John O. Holly facility in the
Cleveland, Ohio district 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 (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 (M1199)
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). 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:
May 18, 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 Equal Employment Assistant
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 Commission notes that its database lists seven appeals filed
by the complainant which were decided in fiscal years 1992 and 1993.
Eleven subsequent appeals by the complainant were decided by this
Commission between fiscal year 1994 and 1999.
3The agency never denied knowledge of complainant's prior EEO activity,
and establishing any such lack of knowledge would be difficult given
the nature and extent of her EEO activity.
4Because the Commission finds that complainant was a victim of unlawful
retaliation, we need not address her claim of disparate treatment because
of her physical disability, as a finding under the Rehabilitation Act
would not augment the relief due her under Title VII and applicable
standards of make-whole relief.
5The Commission notes that as the record indicates complainant was
not represented by counsel, it is accordingly not ordering a remedy of
attorney's fees in this matter.