01973477
01-28-2000
Jesse Rodriguez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Jesse Rodriguez v. United States Postal Service
01973477
January 28, 2000
Jesse Rodriguez, )
Complainant, )
) Appeal No. 01973477
v. ) Agency No. 4G752115696
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Jesse Rodriguez (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of national origin (Mexican-American), sex
(male), 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.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED in part
and REVERSED and REMANDED in part.
ISSUES
The issues on appeal are whether complainant has established by
a preponderance of the evidence that he was subjected to unlawful
employment discrimination and/or retaliation on the above-cited bases
when: (1) he was placed off the clock on December 7, 1995; and (2)
he was issued a Notice of Removal on January 17, 1996.<2>
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier, PS-05, at the agency's Casa View Station in Dallas,
Texas. Believing he was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a formal complaint on February 28,
1996.<3> Therein, complainant alleged that he was discriminated against
when he was placed off the clock on December 7, 1995, and subsequently
received a notice of removal on January 17, 1996. Complainant also
alleged that his supervisor (hereinafter S1: female, Hispanic, no
prior EEO activity) sexually harassed him on a continual basis. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in our regulations, the agency
issued a FAD.
The agency dismissed the sexual harassment claim, noting that complainant
testified that all the incidents of sexual harassment happened prior
to July 1, 1995. Because complainant did not initiate contact with
an EEO Counselor until December 15, 1995, the agency concluded that
complainant's sexual harassment claim was untimely.
The agency went on to conclude that complainant failed to establish a
prima facie case of sex or national origin discrimination when he failed
to present evidence that he was treated differently than similarly
situated individuals not in his protected classes under similar
circumstances. The FAD also concluded that complainant's supervisor
provided credible testimony when she noted that complainant spoke to
her in a hostile and loud voice and pointed his finger in her face,
telling her not to speak to him and to stay away from him. The FAD
also indicated that it was "highly unlikely that any employee would be
disciplined in the manner [complainant was] without having done anything,
as [complainant] would have one believe." <4>
Complainant submits no contentions on appeal.
ANALYSIS AND FINDINGS
Turning first to the agency's dismissal of complainant's sexual harassment
claim, our regulations require the agency to dismiss a complaint that
fails to comply with the applicable time limits. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(b)). An aggrieved person must initiate contact with a Counselor
within 45 days of the date of the matter alleged to be discriminatory.
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.105). Here, complainant testified that
all incidents of sexual harassment occurred prior to July 1, 1995. The
time limit for initiating contact with an EEO counselor would therefore
have been August 15, 1995. The record indicates that complainant first
initiated contact on December 15, 1995.<5> Therefore, the agency's
dismissal of the sexual harassment claim as untimely is AFFIRMED.
Turning now to complainant's other claims, in the absence of direct
evidence of discrimination or retaliation, the allocation of burdens
and order of presentation of proof in a Title VII case is a three-step
process. McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).
Complainant has the initial burden of establishing a prima facie case
of discrimination or retaliation. A prima facie case of discrimination
based on sex or national origin is established where complainant has
produced sufficient evidence to show that (1) he is a member of a
protected class; (2) he was subjected to an adverse employment action;
and (3) similarly situated employees outside his protected class were
treated more favorably in like circumstances. A prima facie case of
retaliation is established where complainant has produced sufficient
evidence to show that (1) he engaged in protected activity; (2) the
agency was aware of his participation in the protected activity; (3)
he was subjected to an adverse employment action; and (4) a nexus exists
between the protected activity and the agency's adverse action. Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318,
324 (D. Mass. 1976), aff'd 545 F.2d 222 (1st cir. 1976); Complainant
may also meet this burden by presenting other evidence which raises an
inference of discrimination. Potter v. Goodwill Industries of Cleveland,
518 F. 2d 864 (6th Cir. 1975); Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment actions. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, complainant retains the burden
of proof to establish discrimination by a preponderance of the evidence.
It is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis
in original).
We first note that the agency was correct in finding that complainant
failed to establish a prima facie case of sex discrimination. All of
the comparative employees named by complainant and produced by the
investigation were in the same protected group as complainant, i.e.,
male. Complainant has thus failed to establish that similarly situated
employees outside his protected class were treated more favorably in
like circumstances. Complainant has also failed to come forward with any
other evidence which raises an inference of sex discrimination. Thus,
the agency's finding of no discrimination on the basis of sex is AFFIRMED.
The agency also correctly found that complainant failed to establish a
prima facie case of national origin discrimination. Although complainant
named several comparative employees of a different national origin than
himself, none of them are similarly situated to complainant. In order
for employees to be considered similarly situated, all relevant aspects
of the employees' work situations must be identical or nearly identical.
This requires that they engaged in the same conduct, reported to the
same supervisor, performed the same job function, and had equivalent
disciplinary records. See Hunter v. United States Postal Service,
EEOC Request No. 05960762 (October 1, 1998).
Of the employees named by complainant, several are managers or
supervisors, while complainant is a letter carrier. The one letter
carrier cited by complainant as a comparative employee has a different
supervisor than complainant, and was disciplined for making threats to
other employees, not supervisors. Complainant has therefore not produced
any similarly situated individuals who were treated more favorably
than he, nor come forward with any evidence which raises an inference of
discrimination on the basis of national origin. Accordingly, the agency's
finding of no discrimination on the basis of national origin is AFFIRMED.
However, the agency erroneously found that complainant failed to establish
a prima facie case of reprisal discrimination. The record indicates
that complainant engaged in protected activity of which the relevant
agency officials were aware. In fact, the alleged altercations occurred
on complainant's first day back after being reinstated to the agency
pursuant to a settlement of his grievance/EEO complaint against S1 and
MCS (two of the responsible management officials in the instant case).
Complainant was also clearly subjected to an adverse action in that he
was placed off the clock and removed.
Moreover, despite the agency's contrary conclusion, a nexus does
exist between the protected activity and the agency's adverse action.
A sufficient nexus is established if the adverse action followed the
protected activity in such a time and manner as to raise an inference
of retaliation. See Torres v. United States Postal Service, EEOC
Request No. 05960042 (June 20, 1996), citing Wrenn v. Gould, 808 F.2d
493, 500 (6th Cir. 1987) and Cohen v. Fred Meyers Inc., 686 F.2d 793,
796 (9th Cir. 1982). Here, the incident in question occurred the very
day complainant returned to work after being removed in July of 1995.
Complainant had filed an EEO complaint in regard to this removal,
naming S1 and MCS as the discriminating officials. On December
7, 1995, complainant returned to work after a grievance settlement
agreement resolved the July 1995 removal. As part of this settlement,
complainant had agreed to withdraw his EEO complaint against S1 and MCS.
Immediately upon his return to work, S1 alleged that he spoke to her in a
loud and hostile voice and MCS alleged he made a threatening phone call.
These claims led to complainant being placed off the clock that day and
subsequently removed. Thus, the adverse action occurred the very day
complainant returned to work after engaging in the protected activity
of filing an EEO complaint in response to his July 1995 removal.<6>
Moreover, the officials whom he is accused of threatening were the very
two officials whom he had named in his prior complaint. We therefore
find that there is a sufficient nexus between the protected activity and
the agency's adverse actions. Accordingly, complainant has established
a prima facie case of retaliation.
The agency articulated a legitimate non-discriminatory reason for its
actions when it stated that complainant had made threatening remarks to
S1 and had made a threatening phone call to MCS. The agency noted that
it placed complainant off the clock to investigate these allegations
and, after investigating, determined that complainant committed these
acts and should be removed.
Complainant now has the burden of establishing that the agency's
articulated reasons for its actions are pretext and that the real
reason was retaliatory animus. In attempting to establish pretext,
complainant argued that employees who made threats in the past had not
been removed. However, as noted above, none of the employees complainant
named were similarly situated to him, either due to their job duties,
their supervisory chain, or the actions which they took.
Complainant also sought to establish pretext by arguing that the agency's
articulated reason was untrue. He argued that he did not make a
threatening phone call to MCS and that he did not threaten S1. Moreover,
he noted that the incident with S1 was simply a misunderstanding about
his route assignment.
MCS does not mention a threatening phone call in her affidavit. However,
statements taken while complainant was off the clock and the agency was
investigating the allegations against him, establish that MCS alleged
that she received a phone call from complainant at approximately
9:00 a.m. on December 7, 1995, which she perceived as threatening.
One of MCS's employees recalls transferring a phone call from a man
at approximately 9:30 a.m. on that day. There is no other evidence
in the record that complainant made this phone call and complainant
denies it. It is interesting to note that the arbitrator who reinstated
complainant and who heard testimony from all the parties involved, found
that complainant had "the barest of opportunity" to make the phone call
in question given that he was accused of doing so between 9-9:30 a.m.,
the same period of time he was involved in the incident with S1.
As far as the incident involving S1, complainant contends that it
was simply a misunderstanding and that he did not create a hostile
work environment. In support of S1's version of events is testimony
from an Acting Supervisor (hereinafter AS: male, white, no prior EEO
activity) at Casa View facility who testified that he saw complainant
talking with S1 with a mean look on his face and that complainant was
pointing his finger at S1 in a "stern, mean" way. AS indicated that he
was standing too far away to hear what was said, despite the fact that
S1 alleged that complainant was speaking in a loud and hostile voice.
The other witness named by S1 was complainant's coworker (hereinafter
CW1: male, Black, prior EEO activity unspecified) who was standing near
or behind complainant when complainant spoke with S1. CW1 testified
that complainant did not speak to S1 in a loud and hostile voice, but
merely asked what route he was on.
During the agency's investigation of the allegations against complainant,
S1 provided a note which alleged that she spoke with CW1 after the
incident occurred and asked him why he lied. She alleged that CW1 stated
that he could not go against the union. There is no statement in the
record from CW1 in support or defense of this allegation.
The agency's investigation also revealed testimony from one of
complainant's co-workers that MCS had said that she would go after
the agency if complainant got his job back, referring to the July 1995
removal. There is no statement in the record from MCS in regard to this
accusation. The record also contains statements from other co-workers who
indicated that S1 told them that in the past MCS treated her badly because
S1 had allowed complainant to return to work. These co-workers theorized
that S1 had originally fired complainant to remain in MCS's good graces.
We make mention of these statements merely to show that the situation
between complainant, his co-workers, and the management officials involved
in this case was extremely tense and that, given this poor relationship,
it is hard to determine what transpired on December 7, 1995.
It is complainant's burden to establish by a preponderance of the
evidence that the motive behind his removal was reprisal. Because there
is evidence to support both S1 and complainant's version of events,
complainant's contention that he did not make threats is not enough,
standing alone, to establish pretext or that the real reason for his
removal was retaliation. However, we find the timing of the incident
in question to be very compelling. Although the agency concluded that
it was "highly unlikely" that any employee would be disciplined in the
manner in which complainant was disciplined if he or she had not done
anything, we find that when officials are motivated by retaliation,
such inappropriate discipline is highly likely indeed. In fact, we agree
with the arbitrator, that what seems highly unlikely is that complainant
would commit hostile acts against supervisors within moments of being
reinstated to active service after being out of work for 5 months.
Moreover, we find the lack of progressive discipline to be suspect.
The removal letter only indicates that one element of complainant's
past record was considered in making the determination to remove him.
Specifically, the letter notes that in June of 1994, complainant
was suspended for 14 days for failure to report a vehicle accident.
To remove an employee for committing the acts of which complainant was
accused, when that employee had only one chargeable offense in his record
from a year and a half ago, and had just been reinstated pursuant to a
settlement agreement, is extremely harsh.
The timing of the incident, the limited believability of MCS's allegation,
and complainant's supported testimony that he did not talk in a loud
and hostile voice to S1, along with the extremity of the discipline,
lead us to believe that complainant's removal was motived by retaliatory
animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Accordingly, the agency's finding of no retaliation in regard to
complainant's removal is REVERSED.
While we find that the agency's removal of complainant was motivated
by retaliation, we find that complainant has not established by a
preponderance of the evidence that he was placed off the clock due to
a retaliatory motive. As explained above, complainant did establish
a prima facie case of retaliation in regard to the off the clock and
removal issues. The agency's articulated reason for placing complainant
off the clock appears to be that it needed to investigate the allegations
brought against complainant by two management officials. While we have
found that the agency's articulated reason for removing complainant was
pretextual, that finding was based in part on the lack of corroboration
for MCS's allegation the fact that CW1 testified that complainant did
not speak in a loud and hostile voice to S1, and the extremity of the
discipline. However, these facts go only to establish that the reason
given by the agency for complainant's removal was pretextual, not that
the reason given for placing complainant off the clock was pretextual.
Complainant did not provide any similarly situated employees to establish
that others who were accused of threatening supervisors were not placed
off the clock, nor did he provide any other evidence that the decision to
place him off the clock was motivated by retaliatory animus. Therefore,
while we find that complainant's removal was retaliatory, we AFFIRM the
agency's finding of no discrimination in regard to its decision to place
him off the clock.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's dismissal of the sexual harassment claim and the agency's finding
of no discrimination on the bases of sex and national origin, and on the
basis of reprisal in regard to the decision to place complainant off the
clock. However, we REVERSE the agency's finding of no discrimination on
the basis of reprisal in regard to the removal issue and REMAND this case
for remedial action in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. As the arbitrator's decision indicates that the agency was previously
ordered to reinstate complainant with pay and all other benefits,
we now add that complainant should be awarded back pay from the time
of his removal on January 17, 1996 to the time of his reinstatement.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), no later than sixty (60) calendar
days after the date this decision becomes final. 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 complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for enforcement or clarification must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency is directed to conduct training for the Area Manager of the
Dallas District, the Manager, Customer Service of Station A (Casa View
Station), and the other managers who played a role in retaliating against
complainant. This includes S1 and MCS because although the Area Manager
and the Manager, Customer Service, Station A (Casa View Station) were
responsible for removing complainant, we believe from the actions revealed
in the record that S1 and MCS would benefit from EEO training as well.
The agency shall address these employees' responsibilities with respect
to eliminating discrimination in the workplace and all other supervisory
and managerial responsibilities under equal employment opportunity law.
The agency shall provide a minimum of eight (8) hours of remedial training
for all managers and supervisors located at the Casa View Station, Dallas,
Texas, to ensure that no retaliatory acts are taken against any employee
who opposes unlawful discrimination, and that persons reporting instances
of alleged reprisal are treated in an appropriate manner.
The agency is directed to remove S1 from complainant's supervisory chain
of command. While this need not involve a transfer of S1 to a different
station, it may not involve a transfer of complainant to a different
station, unless he so requests. The agency may not make any changes
in complainant's pay, hours, or duties in complying with this order,
unless he so requests. If it is not possible to remove complainant from
S1's supervision without changing his station, duties, hours and pay,
then the agency shall give complainant the option of a transfer to a
substantially equivalent position. The agency shall ensure that neither
S1 nor MCS become part of complainant's chain of command in the future,
unless complainant agrees to such action.
The agency shall take appropriate preventative steps to ensure that no
employee is subjected to reprisal discrimination.
The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a causal relationship between his
removal and any pecuniary or non-pecuniary losses.<7> 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.<8> The agency shall issue a final decision on the issue of
compensatory damages. 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.
INTERIM RELIEF (F1199)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.502(b)).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Casa View Station, Dallas, Texas
facility 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).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he 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.
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:
1/28/00
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
NOTICE TO EMPLOYEES
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 the United States Postal Service,
Casa View Station, Dallas, Texas (hereinafter "USPS").
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 USPS supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The USPS was found to have discriminated on the basis of reprisal when an
employee was removed from his position on January 17, 1996. Complainant
had previously been reinstated on the order of an arbitrator. The agency
was therefore ordered to (1) determine the appropriate amount of back
pay and other benefits owed complainant from the time of his removal to
the time of his reinstatement; (2) provide training for the management
officials responsible for the retaliation, as well as for all managers
and supervisors at the USPS (Casa View Station); (3) remove complainant
from the chain of command of his supervisor at the time of his removal;
(4) take appropriate preventative steps to ensure that no employee is
subjected to reprisal discrimination; (5) issue an appropriate award of
compensatory damages, if it is determined that complainant is entitled;
and (6) award reasonable attorney's fees, if applicable.
The USPS 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 1614
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.
2 The record reveals that complainant also filed a grievance on this
matter and that on July 27, 1996, the arbitrator sustained his grievance
and ordered that he be reinstated with all pay and other benefits.
3 The record also contains a formal complaint dated January 4,
1996, apparently filed by complainant in anticipation of his removal.
A letter provided with this and the February 28, 1996 complaint contains
both dates. Although not entirely clear, it appears that these complaints
were consolidated into one complaint dealing with the off the clock issue,
the removal issue, and a sexual harassment issue. We will address all
of these issues in this decision.
4 Although not addressed in detail in the FAD, affidavits from
management officials indicate that complainant was also accused of
making a threatening phone call on the morning of December 7, 1995,
to a Manager, Customer Services, detailed to the Bent Tree Station
(hereinafter MCS: female, German, no prior EEO activity). MCS had
previously been the Manager at the Casa View Station, but had been
reassigned after complainant's original removal in July of 1995.
5 It appears that complainant may have made claims of sexual harassment
involving S1 in the past, but that these claims were withdrawn as part
of a prior grievance settlement agreement.
6 While the removal itself did not occur until after an investigation,
the incident leading to the removal occurred on the very day of
complainant's return, as did the agency's decision to place him off
the clock.
7 In West v. Gibson, 527 U.S. 212 (1999), the U.S. Supreme Court held
that the EEOC possesses the legal authority to require federal agencies
to pay compensatory damages when they discriminate in employment in
violation of Title VII.
8 While complainant has provided testimony in regard to his pecuniary and
non-pecuniary damages, a thorough investigation has not been conducted.