Larry Walker, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionJun 27, 2012
0120083307 (E.E.O.C. Jun. 27, 2012)

0120083307

06-27-2012

Larry Walker, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.


Larry Walker,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120083307

Hearing No. 410-2008-00073X

Agency No. 4H-300-0170-07

DECISION

On July 19, 2008, Complainant filed an appeal from the Agency's June 19, 2008, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to

29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.

ISSUE PRESENTED

The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency discriminated against Complainant on the basis of reprisal for prior protected EEO activity when it placed him on Emergency Off-Duty Status and issued him three 7-Day Suspensions.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Norcross Post Office in Georgia. On March 16, 2007, the Supervisor, Customer Services (S1) placed Complainant on Emergency Off-Duty Status and told him to leave the building. Complainant returned to work on March 20, 2007.

On March 23, 2007, the Agency issued Complainant three separate 7-Day Suspensions. Citing the events of March 16, 2007, the Agency charged Complainant with Failure to Discharge Your Duties, Failure to Follow Instructions, Improper Conduct, and Absent Without Leave. Specifically, the Agency stated that, after a discussion, Complainant refused to follow S1's instructions to report back to his route and return to his case. In addition, the Agency stated that Complainant became loud and aggressive towards S1 and followed him around until he gave Complainant instructions to clock out and leave the building. Further, the Agency stated that Complainant failed to report to work on his next scheduled duty day, March 17, 2007, as instructed by four managers. The Acting Supervisor, Customer Services (AS1) signed all three suspension notices.

Shortly thereafter, Complainant filed grievances regarding his March 16, 2007 placement on Emergency Off-Duty Status and his March 23, 2007 7-Day Suspensions. During the grievance process, Complainant submitted an unsworn statement in which he described his interaction with S1 on March 16, 2007 and disputed the Agency's version of the events. In addition, Complainant submitted unsworn statements from two employees (C1 and C2) who witnessed the interaction and corroborated his version of the events.

On June 20, 2007, Complainant filed an EEO complaint alleging, in pertinent part, that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII when:1

1. On March 16, 2007, he was placed on Emergency Off-Duty Status; and

2. On March 23, 2007, he was issued three 7-Day Suspensions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Relying on affidavit testimony from S1, AS1, and the Manager, Customer Services (M1), the Agency found that management articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretextual.

CONTENTIONS ON APPEAL

On appeal, Complainant argued that the Agency's legitimate, nondiscriminatory reasons were a pretext for reprisal discrimination. Among other things, Complainant asserted that C1 and C2's statements confirmed that he had not engaged in the charged conduct. In addition, Complainant asserted that S1's testimony lacked credibility because he had previously retaliated against employees with prior EEO activity by placing them on Emergency Off-Duty Status based on stories he had fabricated about their disruptive behavior. Further, Complainant asserted that S1 and M1 had influenced AS1's decision to issue the suspensions.

The Agency did not submit a statement or brief in opposition to Complainant's appeal.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to

29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").

Adequacy of the Record

An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.

Upon review, we find the record to be insufficiently developed for us to determine if the Agency discriminated against Complainant on the basis of reprisal when, citing the events of March 16, 2007, it placed him on Emergency Off-Duty Status and issued him three 7-Day Suspensions. Specifically, we find that there is not enough information in the record for us to determine whether the Agency's legitimate, nondiscriminatory reasons for its actions were pretextual. Pretext can be proved through evidence that the agency's explanation for the adverse action is not believable. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.E.2. (May 20, 1998). In addition, potential evidence of disparate treatment also includes relevant background evidence such as an employer's treatment of other employees similar to the complainant. See generally EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-V.A.2. (Apr. 19, 2006).

For example, the record contains no sworn testimony from C1 and C2, even though there is evidence that they witnessed the March 16, 2007 interaction between Complainant and S1. ROI, Affidavit E, at 66-67. There is no indication that the EEO Investigator attempted to contact C1 or C2 to obtain their sworn testimony. Such sworn testimony could help us determine the credibility of S1's explanation for placing Complainant on Emergency Off-Duty Status.

In addition, the record contains minimal sworn testimony from Complainant regarding his March 16, 2007 interaction with S1. Specifically, when asked by the EEO Investigator to describe the incident on March 16, 2007 when he was placed on Emergency Off-Duty Status (Question 23), Complainant's response focused on the events that occurred subsequent to March 16, 2007, not on his interaction with S1 on March 16, 2007. ROI, Affidavit A, at 3. In contrast, we note that Complainant's unworn statement submitted during the grievance process contains a more detailed description of the interaction itself. ROI, Affidavit E, at 65.

Moreover, the record lacks background information about the other employees whom S1 has placed on Emergency Off-Duty Status. Although the record contains the names, position titles, and prior EEO activity of three such employees, the record is incomplete as to the stated reasons for their placements and the circumstances surrounding their placements. ROI, Affidavit B, at 5; Affidavit D, at 4; Investigative Summary, at 25. Such additional information could help us determine how S1 treated similarly situated employees, both with and without prior EEO activity, with respect to placing them on Emergency Off-Duty Status.

Finally, we are unable to determine from the record the identity of the management official(s) who decided to suspend Complainant. M1 testified that he, AS1, and S1 were all involved in the decision to issue the suspensions. ROI, Affidavit D, at 4. S1, however, testified that he was not directly involved with the decision and that AS1 was the only official involved. ROI, Affidavit B, at 5. AS1, who signed all three suspension notices, testified that she did not recall issuing the suspensions. ROI, Affidavit C, at 7. We note that the record contains no internal documentation, such as contemporaneous written communications between the management officials, that could shed light on who was involved in the decision making process. In order to determine whether the suspension was motivated by discrimination, we must first be able to determine which management officials were involved.

Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were discriminatory. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with the Order below.

ORDER

The Agency is ORDERED to take the following actions:

1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's complaint. The Agency shall obtain all pertinent evidence to address the complaint including, but not limited to:

a. Sworn affidavits from C1 and C2 explaining in detail the interaction they witnessed on March 16, 2007 between Complainant and S1.

b. A sworn affidavit from Complainant explaining in detail his interaction on March 16, 2007 with S1.

c. Additional background information about other employees whom S1 has placed on Emergency Off-Duty Status, including the stated reasons for their placements and the circumstances surrounding their placements.

d. Contemporaneous documentation relating to management's decision making process for the March 23, 2007 suspensions.

2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0610)

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), at 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 77960, Washington, DC 20013. 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 (R0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

____6/27/12______________

Date

1 Complainant also alleged that the Agency discriminated against him when he was issued Letters of Warning (LOW) on March 9-10, 2007. In its final decision, the Agency found no discrimination with respect to the LOWs. In his brief in support of his appeal, Complainant stated that he was not appealing the LOWs. Accordingly, we will not address them here.

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0120083307

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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