01974821
01-06-2000
Leonard Allmon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Leonard Allmon v. United States Postal Service
01974821
January 6, 2000
Leonard Allmon, )
Complainant, )
) Appeal No. 01974821
v. ) Agency No. 1C441114296
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of sex (male), reprisal (prior EEO activity), age (date
of birth: March, 5, 1942), and physical disability (Gout and Coronary
Artery Disease), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant alleges he was discriminated against when, on June 14, 1996,
he was issued a seven-day suspension, beginning on July 13, 1996, and
ending on July 19, 1996. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
VACATED and the complaint is REMANDED.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Maintenance Support Clerk, PS-6, at the agency's Cleveland,
Ohio Postal Facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on September 20, 1996. In his complaint, complainant cited sex,
age, and reprisal as the bases of the alleged discriminatory treatment
described above. At the conclusion of the investigation, 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. Complainant failed to request
a hearing, and the agency therefore issued a FAD.
In its FAD, the agency first dismissed physical disability as a basis
for complainant's complaint. The agency argued that this basis was not
noted in the September 20, 1996 formal complaint, but was only raised
in complainant's affidavit of November 19, 1996. The agency therefore
concluded that November 19, 1996 was the date on which complainant
filed a formal complaint relative to his claim of physical disability
discrimination. The agency cited Commission regulations for the
proposition that a complaint must be filed within 15 days after receipt
of the notice of right to file a discrimination complaint and argued
that because complainant received this notice on September 13, 1996,
his November 19, 1996 complaint was untimely. See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.106(a)). Based on this analysis, the agency dismissed physical
disability as a basis for complainant's complaint.
The FAD went on to find that no discrimination occurred, noting that
complainant failed to establish a prima facie case of sex, age and/or
reprisal discrimination. Specifically, the agency found that complainant
had not established a prima facie case of sex and/or age discrimination
because he failed to cite any comparison employees who were treated
more favorably then he. Furthermore, the agency found that complainant
had not established a prima facie case of reprisal discrimination both
because complainant's supervisor (S1) was unaware of prior EEO activity
by complainant , and because complainant's most recent prior EEO activity
took place on January 18, 1994, more than 2 years prior to the suspension
at issue.
The agency also argued that it had articulated a legitimate
nondiscriminatory reason for complainant's suspension. The suspension was
based on three charges: (1) Failure to Maintain Regular Work Schedule,
(2) Failure to Follow Instructions, and (3) Failure to Fulfill Total Job
Responsibility. In regard to the first charge, S1 noted that complainant
had numerous unscheduled absences and had previously been issued a letter
of warning for his attendance deficiencies. Regarding the second and
third charges, S1 stated that complainant had been told previously how to
properly complete work and leave usage reports and had done so correctly
in the past, but that he nevertheless failed to complete the assignment
and failed to notify a supervisor about his inability to complete it.
Thus, the agency held that complainant was disciplined for legitimate
nondiscriminatory reasons.
No new contentions were raised on appeal, although complainant provided
a statement clarifying earlier remarks.
ANALYSIS AND FINDINGS
We turn first to the agency's dismissal of physical disability as a basis
for complainant's complaint. The Commission has held that a complainant
may allege discrimination on all applicable bases, including sex, race,
national origin, color, religion, age, disability and reprisal, and
may amend his or her complaint at any time, including at the hearing,
to add or delete bases without changing the identity of the claim.
See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970);
Dragos v. United States Postal Service, EEOC Request No. 05940563
(January 19, 1995). Here, although complainant did not cite to his
physical disability in his formal complaint, he did identify it as a
basis for his complaint consistently throughout the complaint process.
A review of the record establishes that complainant raised physical
disability as a basis during counseling--first citing his heart condition
and gout in PS Form 2564-A (Information for Pre-Complaint Counseling),
and then discussing it with his EEO Counselor as noted in PS Form
2570 (EEO Counselor's Inquiry Report). Finally, complainant formally
requested that physical disability be added as a basis of his complaint
in his affidavit. Therefore, the agency incorrectly dismissed physical
disability as a basis of complainant's complaint.
Turning now to the issues addressed in the FAD, in the absence of direct
evidence of discrimination or retaliation, the allocation of burdens and
order of presentation of proof in a Title VII or ADEA case is a three-step
process. McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), Loeb
v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). 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 age
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 or, in the case of age discrimination, considerably
younger than he, 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) she 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); Van Druff v. Department of Defense, EEOC Appeal
No. 01962398 (February 1, 1999). 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 action.
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). Moreover, in an ADEA case, the ultimate burden remains on
complainant to demonstrate, by a preponderance of the evidence, that age
was a determinative factor in the sense that "but for" his age, he would
not have been subjected to the action at issue. See Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998).
In the instant case, we find that the investigative file contains
insufficient information upon which to determine if complainant's
suspension was lawful under Title VII and/or the ADEA. While complainant
does have the burden of establishing discrimination, the agency
failed to develop an appropriate factual record, as required by our
regulations. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.108(b)). The agency does not
even allege that complainant was treated the same as similarly situated
employees. The investigator does not appear to have questioned S1 or
any other agency employee concerning the agency's discipline practices in
situations such as complainant's. The investigative file does not include
complainant's personnel records establishing the earlier discipline upon
which the agency partially relies in justifying complainant's suspension.
There is also nothing in the file to establish that there was a clear
understanding of how to properly complete the work hour and leave usage
report to which S1 refers in explaining why complainant was suspended.
In fact, complainant named an employee who allegedly would support his
contention that he was not told how to complete the report in question
and provided a statement from this witness, yet the investigator does
not appear to have questioned this witness.
In addition, the investigation and subsequent FAD completely ignore
complainant's clearly stated claim that his suspension was in retaliation
for an incident that occurred on June 3, 1996, which caused him to file
a grievance on or around June 4, 1996. While the Commission has long
held that filing a labor grievance which does not raise employment
discrimination issues is not considered "protected activity" for the
purposes of reprisal analysis under Title VII, nothing in the file
establishes that the grievance to which complainant referred did not
include employment discrimination issues. See Cotton v. Department
of the Army, EEOC Request No. 05850021 (September 16, 1985); Cranson
v. Department of Commerce, EEOC Request No. 0592004 (February 28, 1992).
Due to the insufficiency of the investigative file, we are unable to
make a decision on the merits of complainant's claim of sex, age and
reprisal discrimination.
CONCLUSION
Accordingly, the agency's dismissal of physical disability as a basis
of complainant's complaint was improper and is REVERSED.
Moreover, based on the above, the Commission concludes that this record
lacks the necessary information upon which to adequately determine if
the agency's action was lawful. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R � 1614.404).
Our regulations require agencies to develop an appropriate and impartial
factual record. See 29 C.F.R. � 1614.108(b). We therefore VACATE the
FAD and REMAND the complaint for supplemental investigation in accordance
with the following ORDER and applicable regulations.
ORDER
The agency is ORDERED to complete the following actions:
1. The agency shall process the remanded claim concerning physical
disability discrimination in accordance with 29 C.F.R. � 1614.108.
2. In addition to investigating the above basis, we ORDER the agency
to undertake a supplemental investigation and provide the following
information:
a. Personnel records of any employees supervised by S1 who were
disciplined for excessive absences, failure to follow instructions
and/or failure to fulfill total job responsibility between 1995 and 1997.
This information must include statements of the sex, disability, prior EEO
activity and age of these employees, as well as a summary and supporting
documentation of the discipline issued to these employees.
b. Complainant's personnel records which show any discipline issued to
him from 1995 through June 1996.
c. An affidavit from the witness mentioned on page 2 of complainant's
affidavit (and who provided the statement at page 23 of the Investigative
report). This witness must be asked whether complainant was told how to
complete the work hour and leave usage reports as S1 indicated on page 1
of his affidavit. The witness may consult the statement she previously
provided (page 23 of Investigative report) to refresh her recollection.
d. A supplemental affidavit from S1, in which he states whether he has
disciplined similarly situated employees in the same manner and indicating
any comparative employees whom he disciplined for the same reasons and
in the same manner as complainant, with appropriate documentation of
such cases. This information must also include statements of the sex,
disability, prior EEO activity and age of these employees.
e. A copy of any personnel practices/policies which indicate the type
of discipline appropriate in complainant's situation.
f. Documentation concerning the grievance filed on or around June 4,
1996 and referenced in complainant's affidavit. The agency shall ensure
that a copy of this grievance, as well as any documentation concerning
whether the grievance raised employment discrimination issues, is included
in the investigative file.
3. The agency shall acknowledge to complainant that it has received
the remanded complaint within fifteen (15) calendar days of the date
this decision becomes final.
4. The agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. The agency shall issue to complainant a copy of the
investigative file and also shall notify complainant of 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.
If complainant requests a final decision without a hearing, the agency
shall issue a final decision within thirty (30) days of receipt of
complainant's request. This new FAD will address complainant's entire
complaint, including his claim of physical disability discrimination,
as noted in paragraph 1 of this Order.
5. A copy of the agency's letter of acknowledgment to complainant,
a copy of the notice that transmits the investigative file and notice
of rights, and a copy of the completed supplemental investigation 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 (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:
1/6/00
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________
Date
__________________________
Equal Employment Assistant
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.