01a00732
05-10-2000
Julia H. Kellogg-Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Julia H. Kellogg-Smith, )
Complainant, )
) Appeal No. 01A00732
v. ) Agency No. 4F-940-0065-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from an agency decision concerning
her 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). Complainant alleged that
she was discriminated against on the bases of race (Caucasian) and sex
(female) when:
On December 4, 1998, complainant was harassed and terminated.
The record reveals that during the relevant time, complainant was employed
as a distribution/window clerk at the agency's San Anselmo facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 18, 1999.
In its final decision, the agency concluded that complainant failed
to prove a prima facie case of race and sex discrimination. Also,
the agency stated that even if complainant established a prima
facie case of discrimination, the agency articulated a legitimate
non-discriminatory reason for its actions, which complainant failed to
show was pretextual. Specifically, complainant's supervisor stated that
when he told complainant to come to his office for an official discussion,
complainant yelled at him, demanded to see in writing where it said that
during a discussion she was not entitled to a witness, and refused to
come to his office. In addition, the agency claimed that following her
refusal to come to the supervisor's office, complainant did not obey the
supervisor's order for complainant to get her belongings, clock out,
and leave the building. Thus, the agency claimed that complainant's
termination was based on a non-discriminatory reason, failure to obey
a direct order and interruption of day-to-day postal operations in
violation of the ELM 651.3(c), (d).
The agency only obtained two affidavits - an affidavit from complainant
and an affidavit from her supervisor. According to complainant, the
supervisor's reason for expelling her from the premises was fabricated.
In complainant's affidavit, she states that she did not yell and scream
at her supervisor, nor did she refuse to go to his office for an official
discussion. Complainant identifies ten witnesses who she claims have
first-hand knowledge of the December 4, 1998 incident and can verify
that she did not yell and scream at her supervisor or refuse to go into
his office. No explanation is given as to why none of complainant's
witnesses were interviewed.
EEOC Regulations require that agencies shall develop �an impartial and
appropriate factual record upon which to make findings on the claims
raised by the written complaint.� 64 Fed. Reg. 37,644, 37,656 (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.108(b)).
Section 1614.108(b) explains that: �An appropriate factual record is
one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred.� Furthermore, EEOC Regulation 29
C.F.R. � 1614.108(c)(1) provides: �The complainant, the agency, and
any employee of a Federal agency shall produce such documentary and
testimonial evidence as the investigator deems necessary.�
The Commission finds that the agency failed to develop an impartial and
appropriate factual record. There is no indication that the investigator
attempted to gather affidavits from corroborating witnesses listed by
complainant in her affidavit. Statements from the witnesses listed by
complainant are relevant in the instant matter because complainant and
her supervisor have provided different versions of what comments were
made by complainant during the December 4, 1998 incident.
Therefore, the Commission shall remand the matter so that the agency
may conduct a supplemental investigation by obtaining affidavits from
all persons who might have reasonably witnessed the incidents at issue.
At a minimum, the agency shall gather affidavits from all persons listed
by complainant in her affidavit (to the EEO investigator) as witnesses
to the December 4, 1998 incident. After reinvestigating the complaint,
the agency shall reissue a final decision.
Accordingly, the agency's decision finding no discrimination is VACATED
and we REMAND the matter to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to the
complainant that it has received the remanded claims within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
conduct a supplemental investigation, obtaining affidavits/statements from
the witnesses identified by complainant regarding the incidents at issue.
The agency shall supplement the record with all other relevant evidence
regarding complainant's December 4, 1998 termination. Within sixty
(60) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time, the agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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:
May 10, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 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.