01971638
11-30-1999
Lazaro R. Rodriguez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.
Lazaro R. Rodriguez v. United States Postal Service
01971638
November 30, 1999
Lazaro R. Rodriguez, )
Complainant, )
) Appeal No. 01971638
v. ) Agency No. 4-H-330-1094-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region) )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination on
the bases of national origin (Cuban), sex (male), reprisal (protected
EEO activity), and age (61), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> Complainant alleges he was discriminated against on
October 4, 1995, when he became aware that no action would be taken on
the recommendation of his supervisor that he be given an Exceptional
Individual Performance Award. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is REVERSED and REMANDED.
The record reveals that during the relevant time, complainant was employed
as an EEO Counselor/Investigator, at the agency's South Florida District
Post Office. Complainant alleged that his recommendation for an award
was not processed due to his involvement in the processing of cases
involving the Postmaster and Customer Services Area Manager. Complainant
maintains that they complained to the Human Resource Manager (M1) about
his method of investigating, and M1 was involved in the processing of
awards. He also maintained that he did not receive an award because he
was the oldest male in the Human Resources Department and because no
males in the Human Resources Department received awards. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on December 12, 1995. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of sex, national origin and age discrimination because he presented
no evidence that similarly situated individuals not in his protected
classes were treated differently under similar circumstances. The FAD
indicated that although other employees received awards, complainant
did not receive an award because the District Manager did not feel
comfortable granting complainant's award when the District was not
performing well. The FAD also concluded that complainant had failed
to establish a prima facie case of reprisal, since he had not engaged
in prior EEO activity. Nevertheless, the FAD concluded that the agency
proffered legitimate, nondiscriminatory reasons for its actions, namely
that complainant did not receive an award because management thought that
it was the wrong time to give awards. On appeal, complainant contends
that other employees received awards during this time. The agency requests
that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requires a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency and finds that complainant
failed to establish a prima facie case of sex, national origin, and age
discrimination because those who received awards included members of
complainant's sex, national origin and age.
With regard to complainant's claim of reprisal however, we disagree
with the agency and find that complainant did establish a prima facie
case of reprisal based on his work as an EEO Counselor/Investigator. We
note that M1 was aware that complainant had been criticized by top
officials. We also note that other employees, whose work does not
appear to have been criticized by the Postmaster and Customer Services
Area Manager received awards during the months of September, October,
November and December 1995, which is when the District was reported as not
doing well. Additionally, we note that although the agency refutes the
fact that complainant has prior EEO activity, based on the record they
concede that complainant engages in protected activity. Based on the
above, the Commission finds that the agency did not provide legitimate
nondiscriminatory reasons for its actions. The agency indicated that it
did not issue awards because the District was not doing well, yet the
record reveals that during that same period of time, other employees
received awards. Since the agency's actions remain unexplained, we
find that "it is more likely than not that such actions were based on
a discriminatory criterion illegal under the Act" Furnco Construction
Co. v. Waters, 438 U.S. 567 (1978).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the FAD and
REMAND this case to the agency to take remedial actions in accordance
with this decision and order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall determine the appropriate amount of complainant's
Exceptional Individual Performance Award with interest, 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 his award, and shall provide
all relevant information requested by the agency. If there is a dispute
regarding the exact amount of the award, 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;"
2. The agency shall ensure that no EEO Counselors/Investigators shall
be subject to reprisal;
3. The agency is directed to conduct a minimum of sixteen (16) hours of
sensitivity training with respect to Title VII for the Manager, Human
Resources and the District Director, who were found to have discriminated
against complainant by not processing his award. 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 take appropriate preventative steps to ensure that no
employee is subjected to reprisal and to ensure that appropriate steps
are taken immediately after management is notified of any such reprisal;
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
the incident of reprisal and any pecuniary or non-pecuniary losses;
See Carle, supra.<2>
The 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. The agency shall issue a final
decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.
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 shall provide a minimum of eight (8) hours of remedial
training for all managers and supervisors located at the South Florida
District Post Office, to ensure that acts of reprisal do not recur,
that no retaliatory acts are taken against any employee who opposes
unlawful discrimination, including EEO Counselors/Investigators; and
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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its South Florida District Office,
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/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.
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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 30, 1999
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:
_________________________ __________________________
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 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. See also Cobey Turner v. Department of the Interior, EEOC
Appeal Nos. 01956390 and 01960518 (April 27, 1998).