0120091994
06-30-2010
Maria Fuentes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Maria Fuentes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120091994
Agency No. 4G-752-0033-08
DECISION
On March 19, 2009, Complainant filed an appeal from the Agency's February
12, 2009 final decision concerning her 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
REVERSES the agency's final decision.
ISSUE PRESENTED
Whether Complainant has established that she was reassigned out of her
position as Manager Injury Compensation, for a second time, in retaliation
for engaging in protected EEO activity.
BACKGROUND
On December 17, 2007, Complainant filed an EEO complaint alleging that she
was discriminated against on the basis of reprisal for prior protected EEO
activity [under Title VII] when, on September 19, 2007, she was reassigned
out of her position as Manager of Injury Compensation at the North Texas
Processing and Distribution Center, Coppell, Texas, for the second time.
The Agency dismissed Complainant's formal EEO complaint on January 14,
2008, finding that Complainant had not been demoted and therefore was
not an "aggrieved person" under the law. Complainant subsequently filed
a Notice of Appeal. A decision was rendered by the Commission, wherein
we determined that Complainant had shown an "injury or harm to a term,
condition, or privilege of her employment." See Fuentes v. U.S. Postal
Serv., EEOC Appeal No. 0120081605 (June 18, 2008). The Commission
found that Complainant claimed to have been "stripped of all benefits of
a manager." The case was remanded to the Agency for an investigation.
The Agency conducted an investigation, and then issued a final decision
pursuant to 29 C.F.R. � 1614.110(b), from which Complainant now appeals.
Final Agency Decision
The FAD found the following: Complainant testified that the District
Manager, Human Resources (HR) took her into a conference room and gave
her a letter dated September 19, 2007, and told her to sign and date it.
Complainant told HR that she felt that she was being reassigned due
to retaliation for various reasons, however HR's response was vague,
and HR indicated that she only wanted Complainant to sign the letter.
She asserted that the reasons cited for her being reassigned from her
position were stated on the letter issued to her.
According to the FAD, Complainant testified that when she was reassigned
from her position the first time, she was out of the position for over
five (5) years. She further testified that she was put back in her
position about a month before the civil action that she filed on the
matter was scheduled for trial. The court granted a motion for summary
judgment against Complainant, and she was immediately reassigned from her
position again. She explained that HR and the Dallas District Manager
(DDM) were aware of her prior EEO activity because they were both named
as discriminating officials and were both deposed in her federal lawsuit.
The FAD then found that Complainant did not establish a prima facie case
of retaliation because she did not present sufficient evidence showing
a causal link between her prior protected activity and the adverse
employment action. The FAD noted that Complainant's most recent EEO
activity had occurred in November 2004 when three cases were closed.
The earliest event cited in the current complaint occurred on September
19, 2007; consequently, the FAD found that there was gap of nearly three
years between Complainant's last EEO activity and the issue involved in
this complaint.
The FAD then found that, assuming for the sake of argument, that
Complainant had established a prima facie case of discrimination based
on reprisal, management articulated a legitimate, non-discriminatory
explanation for its actions. HR declared that Complainant's reassignment
occurred as a result of an EEO complaint (hostile work environment)
being filed against Complainant by one of her subordinate employees
(SE). HR indicated that this was not a permanent move; it was just
pending the outcome of the EEO complaint. HR explained that if an EEO
complaint alleging harassment is filed against a management official,
management is advised to move the alleged harasser, as opposed to the
alleged victim. HR indicated that she relied upon the Postal Service
Sexual Harassment and Discrimination Policies and the Southwest Area
Sexual Harassment Policies because hostile work environment claims fall
under this "umbrella."
According to HR, Complainant was simply assigned to a different section
to work. HR testified that Complainant's title was not changed, nor was
her salary changed; she was just assigned different responsibilities that
already fell under her jurisdiction. HR explained that Complainant was
temporarily assigned to begin working on the National Reassessment Injury
Process (NRP) which falls under Health and Human Resource Management.
She notes that all Injury Compensation Manager's titles were changed in
January to Manager, Health and Resource Management.
DDM testified that Complainant's prior EEO activity was not a factor in
her being reassigned from her position. He stated that he believed the
reasons that she was reassigned were all based on her poor performance.
He added that he himself was not involved as these situations are handled
by the immediate manager. He added that HR was a direct report to him.
DDM explained that he is not aware of any grievances or appeals filed
by Complainant. DDM indicated that he believes that Complainant's
prior EEO activity was based on similar performance issues, and it was
determined that no discrimination existed.
The FAD then concluded that there is no persuasive evidence of pretext
in this record.
CONTENTIONS ON APPEAL
Complainant, through Counsel, has submitted an untimely supporting brief.
That is, she filed her Notice of Appeal on March 19, 2009, and she was
required to file her supporting brief within 30 days after that date.
We are not aware that Complainant requested, or was granted, an extension
to file her brief. Complainant filed her brief on May 5, 2009, 47 days
after the filing of the Notice of Appeal. Accordingly, we cannot consider
the brief for purposes of our decision.
In its Opposition brief, the Agency reiterates arguments made in the FAD,
including that Complainant could not establish a prima facie case of
retaliation because she did not demonstrate the required nexus between
her prior EEO activity and the challenged action, and presented no
persuasive evidence that the agency's reasons are merely pretextual.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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").
The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual "goes to the issue of damages, not liability." Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination-whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]''). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Here, the Commission finds that Complainant has established a prima
facie case of retaliation. The Agency has not persuaded the Commission
that Complainant's most recent EEO activity was three years before
the challenged action in the complaint. Complainant stated in her
Affidavit that one month before she was reassigned out of her position as
Manager of Injury Compensation, summary judgment was granted in Federal
District Court in another of her EEO cases. Report of Investigation
(ROI), Affidavit A, at 3. Thus, Complainant was engaged in EEO related
activity as late as one month before her September 19, 2007 reassignment.
HR and DDM were both aware of this activity because they were deposed.
Accordingly, Complainant has established that she engaged in protected
EEO activity; that the agency was aware of the protected activity; that
subsequently, she was subjected to adverse treatment by the Agency (she
was reassigned out of her position as Manager of Injury Compensation
for the second time and stripped of her managerial duties); and, a
nexus exists (temporal proximity) between the protected activity and
the adverse treatment.
Next, we agree with the Agency that it has provided legitimate,
nondiscriminatory reasons for its actions. Specifically, HR declared
that the temporary reassignment occurred as a result of an EEO complaint
(hostile work environment) being filed against Complainant by SE. We find
this explanation to be lacking in credibility, however, in that there is
no evidence in the record that the complaint brought against Complainant
by SE was in fact a hostile work environment claim. A review of the
record indicates that the claim involved a one-time incident concerning
an audit that took place on December 5, 2006. See ROI, Ex. 4, at 1.
Given that it appears that the only claim brought against Complainant
by SE at that time concerned an audit that was conducted, we find that
HR's explanation for why Complainant was reassigned lacks credibility.
Next, we note that when asked why Complainant was temporarily reassigned,
DDM (who is HR's direct supervisor), noted that he was not involved
in moving her, but that "[t]he reasons were all based on her poor
performance." ROI, Ex. C. We find that this explanation is wholly
inconsistent with the reasons proffered by HR for reassigning Complainant.
We find it inconceivable that DDM, as HR's direct supervisor, would
believe that Complainant was reassigned for a reason that is different
from the reason given by HR. We find that the Agency's witnesses are
conflicting, and not credible. Therefore, we find that the Agency's
articulated reason is merely a pretext for retaliatory animus.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the FAD.
ORDER
The agency is ordered to take the following remedial actions, within 30
calendar days of when this decision becomes final:
(1) Complainant will be retroactively reassigned to her Manager Injury
Compensation position, Coppell, Texas, effective September 19, 2007.
(2) The issue of compensatory damages is REMANDED to the agency.2
On remand, the agency shall conduct a supplemental investigation on
compensatory damages, including providing the complainant an opportunity
to submit evidence of pecuniary and non-pecuniary damages. For guidance on
what evidence is necessary to prove pecuniary and non-pecuniary damages,
the parties are directed to EEOC Enforcement Guidance: Compensatory and
Punitive Damages Available Under � 102 of the Civil Rights Act of 1991
(July 14, 1992) (available at eeoc.gov.) The agency shall complete
the investigation and issue a final decision appealable to the EEOC
determining the appropriate amount of damages within 150 calendar days
after this decision becomes final.
(3) The agency shall determine the appropriate amount of back pay with
interest, leave, and other benefits due Complainant, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, 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. 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."
(4) Within sixty (60) days from the date this decision becomes final,
the agency is ordered to provide at least eight (8) hours of training to
the responsible management officials on the laws prohibiting employment
discrimination, paying particular attention to the topic of retaliation.
(5) The agency shall consider taking disciplinary action against the
responsible management officials. The Commission does not consider
training to be disciplinary action. The agency shall report its
decision to the Compliance Officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure including dates.
(6) The agency shall post a notice in accordance with the paragraph
below.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The United States Postal Service is ordered to post at its North Texas
Processing and Distribution Center, Coppell, Texas facility 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), 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.
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
___6/30/10_______________
Date
1 In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that an employer's explanation
for its actions is not credible. Id. at 519. The Court, however, made
clear that a fact finder might find discrimination in such circumstances.
Id. at 524. The critical factor is that a fact finder, as we find here,
must be persuaded by the Complainant that it was discrimination that
motivated the employer to act as it did. Id.
2 In her formal complaint, Complainant asked for "any and all remedy
allowed by law." Thus, we find that she has asked for compensatory
damages.
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0120091994
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091994