Leslie J. McCollins, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01974491 (E.E.O.C. Feb. 1, 2000)

01974491

02-01-2000

Leslie J. McCollins, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.


Leslie J. McCollins, Jr. v. United States Postal Service

01974491

February 1, 2000

Leslie J. McCollins, Jr., )

Complainant, )

) Appeal No. 01974491

v. ) Agency No. 1H375100196

)

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 sex (male) and reprisal (prior EEO activity), 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 in accordance with EEOC Order

No. 960.001. For the following reasons, the agency's decision is AFFIRMED

in part and VACATED and REMANDED in part.

ISSUES PRESENTED

The issues on appeal are whether complainant has proven by

a preponderance of the evidence that he was subjected to unlawful

employment discrimination or retaliation on the above-cited bases<2> when:

(1) he was placed off the clock on December 5, 1995; and (2) he was issued

a Notice of Removal on January 12, 1996, effective February 23, 1996.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a PS-5 Clerk, at the agency's Air Mail Center in Memphis,

Tennessee. On December 5, 1995, complainant and a co-worker (C1) (female,

prior EEO activity unspecified) were involved in a confrontation over a

foot pedal that controls a belt used in scanning and dispatching mail.

C1 moved the foot pedal from its usual position twice, and complainant

retrieved it twice. During complainant's second retrieval of the foot

pedal, complainant used profanity and made what the agency considers an

"implied" threat to C1. Complainant's supervisor (S1) (female, prior

EEO activity unspecified) then became involved and when complainant

acknowledged that he had used profanity and told C1 something along

the lines of "[s]omebody is going to kick you're [sic] a-- one day if

you keep playing around", he was placed "off the clock" for threatening

a co-worker. Complainant was issued a letter of removal on January 6,

1996 for "rude, disruptive, abusive, and intimidating conduct toward a

co-worker, effective February 23, 1996.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on February 6, 1996,

raising the issues presented above. Complainant acknowledged his use

of bad language, but argued that such language was always used on the

workroom floor, that he did not threaten C1 and that C1 had impliedly

threatened him during their exchange. Following an investigation,

the agency issued a final decision, finding against complainant on his

claims. Specifically, the agency found complainant had not established

a prima facie case of sex discrimination because he did not provide, and

a search of the agency records did not reveal, any females at the Air

Mail Center who had threatened other employees. Therefore, the agency

argued, there were no similarly situated females. The agency also found

that complainant had not established a prima facie case of retaliatory

discrimination because he did not prove there was a causal connection

between his prior EEO activity (filing a complaint on February 16, 1995)

and the adverse employment decision.

Finally, the agency argued that it had articulated a legitimate

non-discriminatory reason for its actions which complainant did not

show to be pretextual. The agency argued that it relied on its "Zero

Tolerance Policy on Threats and Violence in the Workplace" in taking the

adverse actions against complainant. S1 explained that once complainant

admitted to the rude, disruptive, abusive and intimidating behavior he

displayed toward a coworker, she took the required actions in dealing

with the unacceptable behavior.

Complainant raised no new contentions on appeal and the agency requested

that the FAD be affirmed.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination or retaliation,

the allocation of burdens and order of presentation of proof in a Title

VII case is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

Complainant has the initial burden of establishing a prima facie case

of discrimination or retaliation. A prima facie case of discrimination

based on sex 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 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

the initial burden in both sex and retaliation cases 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).

In the case at hand, the agency argued that complainant failed to

establish a prima facie case of discrimination based on reprisal.

The record indicates that complainant has prior EEO activity and that

management was aware of this activity. However, the agency argued that

complainant failed to prove that there was a causal connection between

his prior activity and the adverse employment actions taken against him.

The necessary causal connection may be shown by evidence that the

adverse action followed the protected activity within such a period

of time and in such a manner that a reprisal motive can be inferred.

See Devereux v. United States Postal Service, EEOC Request No. 05960869

(April 24, 1997) , citing Grant v. Bethlehem Steel Corp., 622 F.2d 43

(2nd Cir. 1980). Here, records indicate that complainant's most recent

previous complaint of discrimination was filed on February 16, 1995,

almost ten months prior to the December 5, 1995 incident and more than

eleven months prior to the issuance of complainant's notice of removal.

Moreover, complainant offers no evidence that his earlier EEO activity

was the motive behind the adverse actions at issue. Therefore, we agree

with the agency that complainant has failed to establish a prima facie

case of reprisal discrimination.

Turning now to complainant's allegation that he was the victim of sex

discrimination, we find that the investigative file contains insufficient

evidence upon which to determine if the agency's actions were lawful under

Title VII. While the complainant does have the burden of establishing

discrimination, the agency has failed to develop an impartial and

appropriate factual record, as required by our regulations. See 64

Fed. Reg. 37,644 37, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108(b)).

The agency argued that complainant did not establish a prima facie

case of sex discrimination because he did not indicate any similarly

situated employees who were treated more favorably. However, a review

of the record reveals that complainant named several comparative

employees in PS Form 2564-A (EEO Request for Counseling). While two

of these employees were male, and therefore not outside complainant's

protected group, one of the employees cited by complainant was the

female co-worker (C1) whom he allegedly threatened. Complainant alleged

that C1 was an equally guilty participant in the altercation at issue

and in fact verbally threatened him, yet was not disciplined at all.

The investigative file does not contain any information on C1 to use in

determining whether she is similarly situated to complainant, nor does

the file contain an affidavit from C1. The agency did not respond to

complainant's allegation that C1 threatened him yet was not disciplined.

Moreover, the investigative file does not include even one affidavit from

any of the several witnesses to the altercation between complainant and

C1 which would perhaps refute or bolster complainant's claim that C1

threatened him. Therefore, there is insufficient evidence upon which

to decide if complainant has established a prima facie case.

The agency indicated that the safety of its employees and a zero tolerance

of violence policy were the legitimate non-discriminatory reasons for

the actions taken against complainant. However, the agency's failure

to investigate complainant's claim that C1 threatened him and the lack

of evidence in the file concerning the true nature of the altercation

(i.e., no witness statements), make it impossible to judge the validity

of the agency's claim.

Due to the insufficiency of the investigative file, we are unable

to make a determination on the merits of complainant's claims of sex

discrimination.

CONCLUSION

Accordingly, the agency's finding of no discrimination on the basis of

reprisal is AFFIRMED, and the agency's finding of no discrimination on

the basis of sex is VACATED. The complaint is REMANDED for a supplemental

investigation in accordance with the ORDER below.

ORDER

The agency is ORDERED to conduct a supplemental investigation which

shall include the following actions:

1. The agency shall ensure that the investigator obtains personnel

records on the female co-worker with whom complainant had an altercation

on December 5, 1995 (C1), which indicate her position, supervisor and any

disciplinary actions which have been taken against her for altercations

in the workplace, verbal threats or similar behavior.

2. The agency shall ensure that the investigator obtains an affidavit

from C1. This affidavit shall provide information concerning what

happened during the altercation, including how it began and what C1 did

and said to complainant.

3. The agency shall ensure that the investigator obtains affidavits

from any witnesses to the altercation between complainant and C1.

These witnesses will include the "other employees" whom the agency says

observed the incident on page 5 of the FAD. These witnesses will be

asked to explain what they saw, including whether either complainant,

C1, or both, made threatening remarks or acted in a way that could be

described as rude, disruptive, abusive and/or intimidating.

4. The agency shall ensure that the investigator obtains supplemental

affidavits from S1 and the Plant Manager (PM). In these affidavits,

S1 and PM will explain why they disciplined complainant, but failed to

discipline C1, and/or investigate complainant's allegation that he was

verbally threatened. S1's supplemental affidavit should also respond

to complainant's allegation that S1's statement that complainant had

been disciplined for similar behavior in the past was incorrect in that,

as S1 knew, complainant was exonerated.

5. The agency shall ensure that the investigator obtains documentary

evidence of the agency's claim that complainant had "a history of loud,

verbal use of combative language whenever [he] did not agree with a

situation". The investigator should also obtain documentary evidence

concerning any previous discipline complainant received for similar

behavior.

The supplemental investigation will be completed and a copy will be sent

to complainant within ninety (90) calendar days of the date this decision

becomes final. 29 C.F.R. � 1614.108(e). Thereafter, the agency shall

issue a final agency decision within sixty (60) calendar days. A copy

of the agency's notice transmitting the investigative file to complainant

must be submitted 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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 this decision on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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:

02/01/00

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 after it was mailed. I certify

that this 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.

2 While complainant stated on PS Form 2564-A (EEO Request for Counseling)

that management was discriminating against Black males in a variety

of ways, the EEO Counselor's report did not cite "race" as a basis and

complainant did not indicate in his complaint or in his affidavit that he

wished to add race as a basis for his allegations. Rather, complainant

repeatedly noted that his complaint was based on sex and reprisal and

we will analyze it as such.