01986493
12-07-2000
Jerome Dent, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jerome Dent, )
Complainant, )
) Appeal No. 01986493
v. ) Agency No. 1C441106793
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Jerome Dent (complainant) timely filed an appeal on August 24, 1998,
with the Equal Employment Opportunity Commission (the Commission) from
a final agency decision (FAD-2), dated July 28, 1998, concerning a
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 Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the basis of race (African-American), sex (male),
and/or retaliation (prior EEO activity) when, on November 15, 1994,
he was denied a Transitional Employee (TE) appointment as a Mail Carrier.
BACKGROUND
On April 18, 1995, the agency accepted complainant's formal complaint
alleging discrimination on the above-noted three bases. After completing
an investigation, the agency issued complainant a notice of his right to
request a hearing before an EEOC administrative judge or a final agency
decision without a hearing. Complainant did not request a hearing.
The agency then issued a final agency decision (FAD-1) on December 15,
1995, finding that it did not discriminate against complainant on the
bases of race or sex. Complainant appealed FAD-1 to the Commission.
We issued a decision in Jerome Dent v. United States Postal Service,
EEOC Appeal No. 01962206, (March 4, 1998) vacating FAD-1, and remanding
the matter to the agency for a supplemental investigation because among
other things, the agency had not addressed the basis of retaliation.
The agency completed its supplemental investigation and a copy was sent
to complainant on June 8, 1998. Complainant received the supplemental
investigation and appeal rights and failed to request either a hearing
or an agency final decision. The agency, therefore, issued FAD-2 on
July 28, 1998, finding that complainant was not discriminated against
on the bases of race, sex, or retaliation. This appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
Prima Facie Case
The elements of the prima facie case are determined by the individual
circumstances of each case and the bases of discrimination alleged;
but regardless of the specific action at issue, complainant may
establish a prima facie case by demonstrating: 1) that he is a member
of a protected group; 2) that he is similarly situated to employees
outside of his protected group; 3) and that he was treated differently
than those employees. Potter v. Goodwill Industries of Cleveland,
Inc., 518 F.2d 864, 865 (6th Cir. 1975). However, it is not necessary
for complainant to rely strictly on comparative evidence in order to
establish an inference of discriminatory motivation necessary to support
a prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308,3112 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
The agency reasoned that complainant did not establish a prima facie case
of race or sex discrimination. It noted that complainant cited a fellow
employee (Black/female), who was treated more favorably because her TE
appointment expired in October/November 1994, but she was reappointed as
a TE in December, 1994 while complainant was not. It then stated that
management provided the race and sex of eighteen other TE carriers who
were terminated and then re-employed in December, 1994 as TE clerks.
The agency reasoned that management's �comparisons were not similarly
situated since they were both within and outside of complainant's race and
sex group� and that complainant had, therefore, �not met the burden of
establishing a prima facie case of race and/or sex discrimination based
on disparate treatment.� We find that the agency erred in concluding
that complainant had not established a prima facie case of discrimination
based on sex. Complainant did identify a similarly situated Black female
coworker, who was treated in a more favorable manner, and management's
list of comparison employees is immaterial to whether complainant
established a prima facie case of discrimination based on sex.
We also find that the agency erred in concluding that complainant did
not establish a prima facie case of discrimination, based on race,
merely because he did not identify a similarly situated
non-Black, male coworker who was treated in a more favorable manner. To
establish a prima facie case, complainant need only present evidence
which, if unrebutted, would support an inference that the agency's
action resulted from discrimination based on race. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Complainant did, in fact,
raise such an inference of discrimination. The agency's Human Resources
Specialist (RO-1) stated that she was advised �not to reappoint TE
carriers whose time expired in October and November of 1994.� But she
also said that complainant's name was not on the list of TEs recommended
for reappointment by Customer Services Operations Managers on November
23 and 30, 1994. This information is contradictory because, on the one
hand, RO-1 stated that she was told not to reappoint TE carriers whose
appointments expired in October and November 1994, but, on the other hand,
she acknowledged that she was given two reappointment lists in November
1994 itself. The record contains copies of the notices of personnel
action suggesting that the TE appointments for at least some of the
individuals on the November 1994 reappointment lists had indeed expired
in October and November 1994.The record also shows that two non-Black,
male coworkers of complainant were on that list. In the Order in our last
decision, we asked the agency to identify when the TE appointments had
expired for the individuals on that list, and the agency did not answer
our question. We will, therefore, infer that the TE assignments of the
two non-Black males on that list did, like complainant's assignment,
expire in October/November 1994, and that complainant has, thus, raised
an inference of race discrimination. We find, therefore, that complainant
has established a prima facie case of sex and race discrimination.
To establish a prima facie case of reprisal, a complainant must show that:
1) s/he was engaged in protected activity; 2) the alleged discriminating
officials were aware of the protected activity; 3) the complainant
was subsequently subjected to adverse treatment; and 4) the adverse
action followed the protected activity within such a period of time that
retaliatory motivation may be inferred. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University
College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988);
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye v. Department
of Labor, EEOC Request No. 05940764 (December 15, 1994).
Complainant has established a prima facie case of reprisal discrimination.
He engaged in protected activity when he sought EEO counseling on August
16, 1993, and continued to receive counseling in Case No. 4C-440-2560-93
until February 28, 1994. No formal complaint was filed in that case.
Complainant states that he believes that he was discriminated against
because of �complaints that he made at [his] branch [office].� In
our previous decision, we asked the agency specifically to provide
�affidavits from the responsible management officials regarding their
knowledge of any of [complainant's] prior EEO activity at the time his
reappointment was rescinded or the November 1994 reappointment list was
prepared.� The agency neither acknowledged nor answered our request.
We will, therefore, infer that the alleged discriminating officials were
aware of the protected activity.
Complainant was subjected to adverse treatment when he was denied the TE
appointment, and the denial of the TE appointment occurred eight months
after complainant stopped receiving counseling, within a sufficient
period of time to infer a retaliatory motive.
Legitimate, Nondiscriminatory Reason
Since complainant has established a prima facie case of race, sex, and
reprisal discrimination, the burden of production shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its conduct, and,
thereby, rebut the prima facie inference of discriminatory disparate
treatment. McDonnell Douglas, 411 U.S. at 802-04. The agency need
not persuade the trier of fact that it was motivated by the proffered
reason. Texas Department of Community Affairs, 450 U.S. at 254. Rather,
the agency may rebut the prima facie presumption of discrimination by
clearly setting forth, through the introduction of admissible evidence,
its reasons for favoring the employees outside complainant's protected
classes. Id. at 255. The agency's explanation must be sufficiently clear
and specific such that a complainant has a full and fair opportunity
to demonstrate that the proffered explanation is a pretext for
discrimination. Parker v. United States Postal Service, EEOC Request
No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at 256). While
the burden of production is not onerous, the agency must nevertheless make
some effort to furnish specific, clear and individualized explanations
for the treatment accorded the affected employee. The agency must give
the complainant some rationale that provides him with an opportunity to
satisfy his ultimate burden of proving that the proffered explanation
was a pretext for discrimination. The agency did not meet this burden.
Brooks v. United States Postal Service, EEOC Request No. 05930625 (May
19, 1995).
As a rationale for not hiring complainant as a TE, RO-1 stated that she
was advised �not to reappoint TE carriers whose time expired in October
and November of 1994.� This reasoning is insufficient because the record
shows that TE carriers, whose time expired in October/November of 1994,
were, in fact, reappointed as TEs. In our previous decision, we ordered
the agency to explain this apparent inconsistency by providing, among
other things: �affidavits from the management officials who submitted the
reappointment lists to RO-1 in November 1994, explaining the criteria used
for placing the names on those lists, and the reason for not including the
[complainant's] name on either of those lists even though he was offered
a reappointment in October 1994.� We find that the affidavits supplied
by the agency in response to all of the questions that we asked were
vague, and failed to articulate a reason for this apparent inconsistency.
Agency officials repeatedly said that they could not recall the incident
in question or the reasons that decisions were made. The agency
did not even answer some of the questions that we asked in our Order.
When asked for the criteria to choose the people on the list, one agency
official, RO-2, recalled that �[i]f an employee was not hired back, [it]
was based on [their] last manager's recommendation.� Neither RO-2,
nor any other agency official could explain what the criteria were in
these recommendations, or any of the other criteria for choosing who was
on the list. The agency also did not provide a copy of complainant's last
manager's recommendation so that complainant would be given a specific,
clear and individualized reason as to why he was not reappointed as a TE
after he was told in October that he would be. RO-2 went on to state that
complainant �was not recommended [by his last manager] and was [therefore]
not include[d] on the list.� We find it dubious that someone who had
been offered reappointment as a TE just one month earlier in October,
would not have been recommended by his last manager for reappointment as
a TE. For these reasons, we find that the agency failed to rebut the
prima facie inference of discrimination by articulating a legitimate,
nondiscriminatory reason for its actions. We find, therefore, that
complainant was subjected to discrimination based on race, sex, and
reprisal when he was denied reappointment as a TE.
CONCLUSION
The decision of the agency is hereby REVERSED and a finding of
discrimination is entered.
ORDER
The agency is ORDERED to take the following remedial action:<2>
(1) The agency shall award complainant backpay with interest and other
benefits due complainant, for the period from November 15, 1994 to
November 15, 1995; and
(2) The agency shall determine whether other temporary employees converted
to full time status thereafter. If so, complainant should be reinstated
in a permanent position and given backpay with interest and other benefits
due complainant. If no other temporary employees were converted to full
time status, then complainant is only entitled to backpay for one year,
as outlined above.
The agency shall determine the appropriate amount of back pay with
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
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 backpay 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, 2400 Orange
Avenue, Cleveland, Ohio, 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___12-07-00_______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment. The United States Postal Service, John
O'Holly Facility, Cleveland, Ohio confirms its commitment to comply with
these statutory provisions.
The United States Postal Service, John O'Holly Facility, Cleveland, Ohio
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The United States Postal Service, John O'Holly Facility, Cleveland, Ohio
was found to have discriminated against an employee when he was denied
reappointment as a transistional employee. The facility was ordered,
among other things, to reappoint complainant as a transistional employee.
In addition, the facility was ordered to submit a compliance report to
the Commission verifying the completion of all ordered corrective action.
The United States Postal Service, John O'Holly Facility, Cleveland, Ohio
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 16141 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 29 C.F.R. Part 1614 in deciding
the present appeal. The regulations, as amended, may also be found at
the Commission's website at www.eeoc.gov.
2 Complainant did not request compensatory damages. Thus, none will
be awarded herein.