01975958
10-29-1999
Janice L. FormyDuval, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic) Agency.
Janice L. FormyDuval v. United States Postal Service
01975958
October 29, 1999
Janice L. FormyDuval, )
Appellant, )
) Appeal No. 01975958
v. ) Agency No. 4D-270-1090-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic) )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against on
February 8, 1996, when she was instructed to report for a psychiatric
Fitness For Duty Examination (FFDE), after she filed sexual harassment
charges against several of her co-workers. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is VACATED AND REMANDED.
The record reveals that during the relevant time, appellant was employed
as a District Window Clerk, at the agency's Cary, North Carolina Post
Office. The record also reveals that appellant's prior EEO activity
was comprised of two complaints both involving the allegations of sex,
retaliation and harassment. Appellant alleged that she was told that
if she withdrew these complaints she could have an administrative team
(Team) investigate her sexual harassment complaint. Appellant withdrew
her complaints and a Team was assigned to investigate her complaint
of sexual harassment. The Team was comprised of management officials
from two independent post offices. The Team interviewed appellant, the
named parties and witnesses. According to the TEAM, during the interviews
some of appellant's co-workers indicated that they feared appellant. The
Team's investigative report found no evidence of sexual harassment and no
corroboration of appellant's allegations by any of the named witnesses
or her co-workers. The Team recommended that appellant be sent for a
psychiatric FFDE. The Post Office Operations Manager decided to follow
the recommendation, and on February 8, 1996, appellant was instructed
to report for a FFDE. Believing she was a victim of discrimination,
appellant sought EEO counseling and, subsequently, filed a complaint
on September 16, 1996. At the conclusion of the investigation, after
appellant failed to timely request a hearing the agency issued a FAD.
The FAD concluded that appellant failed to establish a prima facie case
of sex discrimination because she presented no evidence that similarly
situated individuals not in her protected classes were treated differently
under similar circumstances. The FAD also found that appellant failed to
establish a prima facie case of reprisal because she failed to demonstrate
that the agency was aware of her participation in the protected activity;
or that the agency took action which adversely impacted upon appellant;
or that a nexus existed between the protected activity and the agency's
adverse action.
On appeal, appellant contends that there was no sound reason for
subjecting her to a psychological evaluation after she complained
of sexual harassment. She maintained that she had not displayed any
aggressive or hostile behavior toward any of her co-workers. Appellant
indicated that those she accused of sexual harassment also had
difficulty with others, yet they were not subjected to a psychological
evaluation. She also maintained that there is evidence which demonstrates
that numerous females in the office have been subjected to sexual
harassment both before and after she complained. The agency requests
that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), we
find that the evidence is insufficient to allow a determination on the
merits of appellant's allegations of discrimination. Our regulations and
the EEOC Management Directive for 29 C.F.R. Part 1614 require agencies
to develop a complete and impartial factual record. See 29 C.F.R. �
1614.108(b) and EEOC Management Directive for 29 C.F.R. Part 1614,
EEO-MD-110, at 5-1 (October 22, 1992). This record lacks relevant
documentation regarding comparator information, specifically whether
other employees were required to undergo FFDE after filing a complaint.
We also note that there is no information regarding appellant being told
to withdraw her sexual harassment claim.
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 of complaint
no. 4D-270-1090-96, which shall include the following action:
1. The agency shall ensure that the investigator obtains information
concerning the sex and prior EEO activity of all of the Window Clerks
at the Cary, North Carolina, post office. The investigator is also to
obtain information regarding the number of sexual harassment complaints
filed at the Cary, North Carolina post office between February 8, 1994
to February 8, 1996, showing the sex and prior EEO activity of each
complainant and whether or not a FFDE was required;
2. The agency shall provide detailed information regarding its policy
on sexual harassment, investigative methods used, and requirements for
filing such a complaint;
3. The agency shall ensure that the investigator obtain affidavits from
witnesses including those of all Team members. The affidavits are to
include testimony from witnesses regarding appellant's behavior i.e.,
ability to get along with others, the behavior of the alleged sexually
harassing co-workers and whether or not the witnesses were aware of
appellant's prior EEO activity;
4. The agency shall ensure that the investigator obtain information
regarding the sex and prior EEO activity of any employee in the Cary,
North Carolina, post office who was instructed to undergo a FFDE; and
5. 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 appellant's allegations.
6. The agency1 shall ensure that the investigator completes
a supplemental investigation within one-hundred and twenty (120)
calendar days of the date this decision becomes final. Thereafter,
the agency shall provide the appellant with a copy of the supplemental
investigation within thirty (30) calendar days of the date the agency
completes the supplemental investigative report. The agency shall then
take any action appropriate and consistent with appellant's responses, and
issue a new FAD within thirty (30) calendar days of appellant's response
or, if appellant fails to respond, within thirty (30) calendar days
following the last day appellant would have been permitted to respond.
Copies of the completed supplemental investigation and new FAD must be
submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
October 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations