Maria Schulze, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
01975158 (E.E.O.C. May. 26, 2000)

01975158

05-26-2000

Maria Schulze, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Maria Schulze v. United States Postal Service

01975158

May 26, 2000

Maria Schulze, )

Complainant, )

) Appeal No. 01975158

v. ) Agency No. 4K200112496

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Maria Schulze (complainant) timely initiated an appeal of a final

agency decision (FAD) concerning her complaint of unlawful employment

discrimination 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

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405). Complainant alleged that she was discriminated

against on the basis of reprisal (prior EEO activity) when she was

issued a Letter of Warning (LOW) for Unsatisfactory Performance on June

17, 1996. 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 Window Service Technician, PS-6, at the agency's main Post Office in

Rockville, Maryland. On June 17, 1996, complainant was issued a LOW for

failing, on two occasions, to enclose all of the stamps that customers

had ordered and paid for while filling "Stamps By Mail" (SBM) orders.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on October 6, 1996.

Therein, complainant alleged that her supervisor had engaged in a pattern

of reprisal against her, including continual discipline for alleged

"deficiencies" and the issuance of a LOW on June 17, 1996. On February

12, 1997, the agency notified complainant that her allegation that

she was discriminated against on the basis of a June 17, 1996 LOW, was

accepted for investigation.<2> At the conclusion of the investigation,

complainant was informed of her right to request a hearing before an EEOC

Administrative Judge or, alternatively, to receive a final decision by

the agency. When complainant failed to respond within the time period

specified in 29 C.F.R. � 1614, the agency issued a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of reprisal. Specifically, the agency noted that

the supervisor whom complainant alleged discriminated against her was

unaware of complainant's prior EEO activity. Moreover, the FAD argued

that there was no nexus between the prior EEO activity and the alleged

adverse action because the prior activity occurred on January 5, 1995,

a year and a half before complainant was issued the LOW at issue in

this case.

The agency went on to find that it had articulated a legitimate

non-discriminatory reason for its action; namely, on May 31 and June 3,

1996, complainant failed to properly fill SBM orders and that complainant

had been given discussions regarding her continued unsatisfactory

performance prior to the issuance of this LOW. The agency concluded

that complainant failed to establish that this articulation was a pretext

for discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the FAD is fatally flawed for a

number of reasons. First, complainant notes that her supervisor admitted

in her affidavit that she was aware of complainant's prior EEO activity.

Complainant also notes that while her prior EEO activity was in January

of 1995, she did not return to her position until May of 1996 and that

her supervisor immediately began retaliating against her, culminating in

the LOW of June 17, 1996. Therefore, complainant argues, the apparent

extended time period between her prior EEO activity and the alleged

adverse action does not really exist. In fact, complainant argues that

the immediacy of the issuance of the LOW upon complainant's return to her

position, indicates that the motive was retaliatory. Complainant also

argues that because there is no proof in the record that complainant did

not enclose all of the stamps for which the customers paid, the agency's

proffered legitimate non-discriminatory reason is clearly pretextual.

Complainant also alleges that the investigation was "a sham" in that

the investigator did not take affidavits from people who had heard

complainant's supervisor make outrageous comments about complainant, nor

do any investigating into disciplinary actions taken against comparative

employees.

The agency offers no new contentions on appeal and asks that complainant's

appeal be denied.

ANALYSIS AND FINDINGS

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,

U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st

Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission

finds that complainant established a prima facie case of reprisal.

Despite the agency's contentions to the contrary, complainant's supervisor

(S1) acknowledged that she was aware of complainant's prior EEO activity.

Moreover, it is undisputed that a LOW constitutes an adverse employment

action. The agency argued that complainant failed to establish that there

is a nexus between her prior EEO activity and the alleged adverse action

because the prior activity occurred about a year and a half before the

action at issue. The record establishes that after receiving a letter

of removal from S1 on December 1, 1994, complainant contacted an EEO

counselor in January 1995 and filed a formal complaint alleging race and

sex discrimination on March 21, 1995. While this activity is more than

a year prior to the issuance of the LOW, complainant alleges that she

was only reinstated to her position under S1 in March of 1996<3> and

that as soon as she was reinstated S1 began to retaliate against her.

Although it is not entirely clear from the record when complainant was

reinstated after she was found by an arbitrator to have been unfairly

terminated, the grievance award is dated February 16, 1996. Moreover,

records indicate that complainant received a "refresher" training course

on or around April 1, 1996, including training for filling SBM orders,

after which she was returned to her position under S1.

Based on these records and given that the agency failed to respond

to complainant's claim that the reprisal began as soon as she was

reinstated, we find the agency's dependence on the lengthy time period

between complainant's prior EEO activity and the alleged adverse action to

be misplaced. In fact, we agree with complainant that the issuance of

the LOW so soon after her reinstatement is enough to satisfy her burden

of showing a causal connection between her prior EEO activity and the

action at issue. Therefore, we find that complainant has established

a prima facie case of reprisal.

The agency articulated a legitimate non-discriminatory reason for the

issuance of the LOW. Specifically, S1 noted that she gave discussions

to every employee who made an error in handling SBM orders and that

complainant had been given discussions prior to the issuance of the June

17, 1996 LOW. S1 indicated that the LOW was issued due to complainant's

continued unsatisfactory performance.

Complainant bears the burden of establishing that the agency's articulated

reason is pretextual and that the real reason for the adverse action

was reprisal. After a careful review of the file, we find the record

insufficient to determine whether or not complainant was retaliated

against as alleged, because the agency has failed to fulfill its

responsibility of developing an impartial appropriate factual record on

which complainant can base her case. 64 Fed. Reg. 37,644, 37,656 (1999)

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

While complainant did not deny S1's contention that S1 had disciplined

complainant for unsatisfactory work performance prior to the LOW,

complainant made several important allegations in her affidavit

that the investigator ignored. Complainant noted that there were

employees who made errors similar to her own, yet were not disciplined

as harshly and were not required to follow the same procedures as she.

Although complainant provided the name of an employee who was aware of

this situation (AC), that employee was not interviewed. Complainant

noted that she was told by another co-worker (BM) that S1 told people

that inquiries made about any files which would show errors made by

window service employees, were not to be honored and that S1 was to be

told who made such inquiries. Complainant provided BM's name to the

investigator and alleged that BM also heard S1 make disparaging remarks

about complainant--perhaps providing direct evidence of reprisal--yet BM

was not interviewed. Complainant also described a conversation which

allegedly occurred between S1 and a T-6 at the Potomac Branch (T6)

who was told he would have complainant's job because complainant would

never be back after her removal. Complainant states that the substance

of this conversation would show S1's retaliatory motive. No affidavit

fromT6 was provided.

Moreover, while the investigative report indicates that no other employee

supervised by S1 has a record of incorrectly filling an SBM order<4>,

S1 stated in her affidavit that she did discover another employee (C1)

who "filled an incomplete Stamps By Mail order" and that she gave him a

discussion about the matter. The discrepancy between S1's statement and

the investigative report's conclusion that there were no comparative

employees is not explored and no testimony from C1 as to whether he

committed an error similar to complainant's and what kind of discipline

he received is provided.

We note that the deficiencies in the investigation may not have convinced

us that this case is deserving of a supplemental investigation, if not

for the specifics of this case. Complainant was reinstated after being

terminated and filing an EEO complaint, the adverse action occurred

soon after her return to work, and complainant named several possible

witnesses to the alleged retaliatory animus of her supervisor. In such

a situation, we judge the agency's responsibility to develop an impartial

and appropriate factual record to be especially acute. Therefore, based

upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

VACATE the agency's final decision finding no discrimination and REMAND

the case to the agency for a supplemental investigation in accordance

with our ORDER below.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

1. The agency shall provide an affidavit from C1, named in S1's affidavit

as an employee to whom S1 gave a discussion about an incomplete Stamps

By Mail order. This affidavit shall describe the discussion given to C1

and the reasons for the discussion, as well as any discipline/discussions

received by C1 between July 1995 and July 1996. C1 will also indicate

whether he has engaged in EEO activity. Documentary evidence of any

discipline received by C1 between July 1995 and July 1996 shall also

be provided.

2. The agency shall provide an affidavit from the individual described

in complainant's affidavit as an "Accountant Clerk for Rockville" (AC).

This affidavit shall describe the conversation mentioned by complainant in

her affidavit concerning the calls from customers who did not receive all

the stamps which they ordered and AC's knowledge that these complaints did

not result in discipline for the clerks responsible for the SBM orders.

AC will provide the names of the clerks in question, if possible.

The agency shall provide personnel records of any discipline received by

any of the clerks named by AC as responsible for incomplete SBM orders.

The agency shall also provide a summary of this information, indicating

the name and supervisor of each employee named, when a complaint

concerning an SBM order was received, and what discipline followed.

3. The agency shall provide an affidavit from the female individual, BM,

mentioned in complainant's affidavit at the end of page 2. This affidavit

will describe any knowledge of S1's attempts to prevent complainant from

establishing she was discriminated against, including specific comments as

to whether S1 indicated that requests to review files revealing mistakes

made by other window clerks in filling SBM orders were not to be honored

and were to be reported to S1. This affidavit will also describe any

statements made by S1, of which BM is aware, concerning S1's feelings

about complainant's prior removal. Furthermore, this affidavit shall

provide information on any discussions or other discipline given to BM

by S1 between July 1995 and July 1996. BM shall also indicate whether

she has engaged in EEO activity. Documentary evidence of any discipline

received by BM between July 1995 and July 1996 shall also be provided.

4. The agency shall provide an affidavit from the male individual

described in complainant's affidavit as a T-6 at the Potomac Branch (T-6).

This affidavit shall describe any conversations between S1 and T-6 that

took place between November 1994 and June 1996, involving complainant's

job and/or removal, S1's alleged statement that complainant would never

return to her job, and S1's desire to give T-6 complainant's job at

the main office in Rockville, Maryland.

5. The agency shall provide a supplemental affidavit from S1.

S1 will testify as to whether she gave C1 any discussions/discipline for

unsatisfactory performance between July 1995 and July 1996, other than the

discussion mentioned in her current affidavit. S1 will also testify as to

whether she told anyone between March 1996 and March 1997 that information

requests regarding errors made by window clerks should not be honored and,

if so, when and why. S1 will also provide more specific information about

what discipline she had issued complainant after she returned to work in

March 1996 and before the June 17, 1996 LOW. This specific information

shall include any documentary evidence that such discipline was given,

the days such discipline was given and the reasons for such discipline.

The supplemental investigation must be completed and a copy sent to

complainant within sixty (60) calendar days of the date this decision

becomes final. Complainant will then have thirty (30) days from receipt

of the supplemental investigative file to provide a rebuttal affidavit.

The agency shall issue a final agency decision within sixty (60) calendar

days of its receipt of complainant's rebuttal affidavit, or within

ninety (90) calendar days of complainant's receipt of the supplemental

investigation file if no rebuttal affidavit is received. A copy of the

agency's notice transmitting the investigative file to the 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 (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

May 26, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 Although the formal complaint alleged a pattern of reprisal which

included discipline for "deficiencies" and the LOW, the Counselor's

report indicated that complainant alleged reprisal based on the LOW.

As noted, this was the issue accepted for investigation and complainant

only describes the situation surrounding the June 17, 1996 LOW in her

affidavit. On appeal, complainant notes that she filed a reprisal claim

due to the LOW.

3 This appears to be the date complainant returned to the workplace,

although complainant gives May 1996 as the date she was returned to her

position under the supervision of S1.

4 The investigator stated that a review of the Mail Loss/Rifling

Reports only revealed claims for losses of SBM orders involving orders

not delivered, rather than the receipt of incomplete orders.