01a03131
07-27-2000
John Marion Gay, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John Marion Gay v. USPS
01A03131
July 27, 2000
.
John Marion Gay,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03131
Agency No. 4-H-330-0137-99
DECISION
The complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The complainant alleges that he was discriminated against on the basis
of reprisal when on December 8, 1998, he was not interviewed for the
position of Manager, Hialeah Main Post Office.<2>
For the following reasons, the Commission REVERSES the agency's FAD.
The record reveals that during the relevant time, the complainant was
employed as a Supervisor, Customer Service, at the agency's Palmetto Lakes
Post Office facility in Hialeah, Florida. Believing he was a victim of
discrimination, the complainant sought EEO counseling and subsequently
filed a formal complaint on April 3, 1999. At the conclusion of the
investigation, the complainant was provided a copy of the investigative
file and informed of his right to request a hearing before an EEOC
Administrative Judge or, alternatively, to receive a final decision by
the agency. The complainant failed to request a hearing, and the agency
therefore issued a FAD, finding no discrimination.
In its FAD, the agency concluded that the complainant failed to establish
a prima facie case of disparate treatment or a discriminatory motive
based on retaliation, because he showed no causal connection between
the agency's failure to interview him and his previous EEO activity.
The agency then concluded that it had proffered a legitimate,
nondiscriminatory reason for its action, without naming the reason.
Finally, the agency concluded that the complainant failed to demonstrate
by a preponderance of the evidence that he was intentionally retaliated
against.
The complainant raises no new contentions on appeal, and the agency made
no comments in response to the appeal.
After a thorough review of the record, we find that the evidence is
sufficient to allow a determination that the complainant showed a prima
facie case of retaliation in that the Chairwoman of the Review Panel, who
did not forward the complainant's name to the interviewing supervisor,
was also the complainant's immediate supervisor and Postmaster (PM),
against whom he had previously filed an EEO complaint. The record
discloses that the previous complaint remains an open complaint with
the agency. Therefore, we find a causal connection can be inferred and
the complainant meets his burden of showing a prima facie case.
Having established a prima facie case of retaliation, the burden shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its
action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
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 the statements made by the PM in her affidavit is both
misplaced and wholly inadequate to explain the agency's action.
The relevant portions of the PM's affidavit follow:
03 On what was the decision not to interview the complainant ... made?
The decision was based on the information on the PS Form 991 submitted by
[the complainant].
04 Did the Complainant's prior EEO activity have any influence on you
to not interview him?
No
05 Were you aware of the Complainant's EEO activity?
Yes
We find that the PM's statement merely saying that her decision was based
on the information in the 991 without more is insufficient to allow the
complainant to demonstrate pretext. Accordingly, we find that the record
supports a finding of retaliation.
Therefore, after a careful review of the record, we reverse the agency's
finding of no retaliation and remand this case to the agency to take
remedial actions in accordance with this decision and order below.<3>
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency is directed to provide EEO training for the Postmaster,
who was found to have retaliated against the complainant when she failed
to forward his name for an interview. The agency shall address this
employee's responsibility with respect to eliminating discrimination in
the workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law.
2. Within ten (10) calendar days of the date this decision becomes
final, the agency shall give the complainant a notice of his right
to submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of his claim for compensatory damages within forty-five (45)
calendar days of the date the complainant receives the agency's notice.
The agency shall complete the investigation on the claim for compensatory
damages within seventy-five (75) calendar days of the date this decision
becomes final. Within one hundred (100) calendar days of the date
this decision becomes final, the agency shall issue a check to the
complainant for the undisputed amount of proven compensatory damages.
The complainant may petition for enforcement or clarification of any
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.�
3. The agency shall post a notice in accordance with the paragraph
below.
4. 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 evidencing
the corrective action implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Palmetto Lakes Post Office, Hialeah,
Florida 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.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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, Acting Director
Office of Federal Operations
July 27, 2000
__________________
Date
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 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, Palmetto
Lakes Post Office, Hialeah, Florida reaffirms its commitment to comply
with these statutory provisions.
The Palmetto Lakes Post Office supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law. The EEOC found that an individual was
discriminated against in violation of Title VII when the individual was
denied an interview for the Manager, Hialeah Main Post Office position.
The Palmetto Lakes Post Office is remedying the employee affected by
the Commission's finding. The ordered remedies include ensuring that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The Palmetto Lakes Post Office 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: ________________
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 We note that the complainant does not argue that he would been selected
for the position, rather his complaint focuses on the failure to be
referred for an interview.
3 We note that the complainant requests remedies in the form of: 1)
requiring the PM to recuse herself from any Review Panels involving
positions for which he applies; 2) monetary damages; and 3) consideration
for an upgrade outside the present sphere of influence.