01980310
05-03-2000
Mitzi G. Baker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mitzi G. Baker v. United States Postal Service
01980310
May 3, 2000
Mitzi G. Baker, )
Complainant, )
)
v. ) Appeal No. 01980310
) Agency No. 4J-606-1176-95
William J. Henderson, ) Hearing No. 210-96-6360X
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency (FAD) concerning her allegation that the agency violated Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The issue presented is whether complainant proved, by a preponderance of
the evidence, that she was discriminated against because of her previous
EEO activity when she was issued a seven-day suspension on February
24, 1995.
Complainant began working at the agency in January 1989 as a Letter
Carrier. In 1993, she was assigned to the Jackson Park Station in
Chicago, Illinois. On February 7, 1995, she tossed an uncooked bag of
microwave popcorn to a co-worker. The bag of popcorn passed in front of
a third employee, B-1, who maintained that it narrowly missed her face.
B-1 reported the incident to management. According to B-1, complainant
tried to hit her. Complainant, therefore, was subsequently issued a
seven-day suspension for committing an unsafe act.<2>
On February 24, 1995, complainant contacted an EEO counselor. On April 5,
1996, she filed a formal complaint that alleged she was discriminated
against because of her prior EEO activity.<3> The agency complied
with all procedural and regulatory prerequisites, and on February 26,
1997, a hearing was held before an EEOC Administrative Judge (AJ).
On September 3, 1997, the AJ issued a Recommended Decision (RD)
finding that the agency engaged in unlawful retaliation because of her
prior EEO activity when the agency issued complainant the suspension.
Subsequently, the agency, in its final decision, rejected the AJ's RD.
According to the agency, complainant failed to establish a prima facie
case of discrimination based on reprisal because she was not similarly
situated with C-1, the comparative employee she named. Although the
concurring official, RMO-2, was the same, complainant and C-1 both
had different first-level supervisors. Complainant now appeals the
agency's decision.
After a careful review of the record in its entirety, the Commission finds
that the AJ's RD correctly summarized the relevant facts and referenced
the appropriate regulations, policies and laws. We therefore discern
no basis to disturb the AJ's finding of discrimination. In this regard,
we note that complainant presented evidence that although others engaged
in unsafe acts, they were not disciplined. For example, C-1 threw a
chair in the direction of one employee and hit another employee's leg.
C-1, who did not have any previous EEO activity, was not disciplined,
but received an official discussion from RMO-2.<4> According to RMO-2,
he has had official discussions with employees, other than complainant,
who have committed unsafe acts; however, he thought that their incidents
were less severe than complainant's. With regard to C-1, RMO-2 stated
that "[n]o evidence was presented to support the claim that another
employee . . . was hit with [the] chair."<5>
The AJ found that although complainant committed the act in question, the
agency's position was undercut by its treatment of C-1. The AJ stated
that "[I] find that [the] tossing of a chair is as severe, or more so,
than the complainant's incident." The AJ found pretextual RMO-1's
claims that she conducted an investigation into the matter and was not
aware of complainant's prior EEO activity.<6> Finally, the AJ did not
recommend that complainant receive compensatory damages in this case.
Although complainant testified that she "[w]orried about [this matter]
excessively" and that her "[s]tress level" was raised<7>, the AJ found
complainant's testimony was "cold, insincere, and unconcerned." The AJ
further found that complainant's testimony lacked personal feeling and
was not credible. Therefore, the AJ concluded that complainant "[d]id
not suffer such alleged damages." Pursuant to 64 Fed. Reg 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405(a)), all post-hearing
factual findings by an Administrative Judge will be upheld if supported by
substantial evidence in the record. Substantial evidence is defined as
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). "
We concur with the findings of the AJ. Accordingly, after a careful
review of the entire record, including arguments and evidence not
specifically addressed in this decision, it is the decision of the
Commission to REVERSE the agency's final decision in this matter.
The agency will comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency will rescind and expunge from its files any record of
complainant's seven-day suspension.
2. The agency is directed to conduct training for RMO-1 and RMO-2 at the
Jackson Park Station, Chicago, Illinois. This training shall address
management responsibilities with respect to eliminating discrimination
in the Federal workplace and all other supervisory and managerial
responsibilities under equal employment law.
3. The agency is ORDERED to post at its Jackson Park Station, Chicago,
Illinois 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.
4. 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 evidence that the required corrective
actions have been implemented.
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 (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:
__05-03-00______ __________________________________
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
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment. The United States Postal Service, Jackson
Park Station, Chicago, Illinois confirms its commitment to comply with
these statutory provisions.
The United States Postal Service, Jackson Park Station, Chicago, Illinois
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The United States Postal Service, Jackson Park Station, Chicago,
Illinois was found to have retaliated against an employee when she
was suspended for committing an unsafe act. The facility was ordered,
among other things, to rescind and expunge from its files any record
of the suspension. In addition, the facility was ordered to submit
a compliance report to the Commission verifying the completion of all
ordered corrective action.
The United States Postal Service, Jackson Park Station, Chicago, Illinois
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1On 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.
2According to the record, complainant did not serve any actual time
"off-the-clock" because the suspension was reduced to a "paper suspension"
through the union grievance process.
3Prior to being assigned to the Jackson Park Station, complainant
filed two EEO complaints. In 1994, while at the Jackson Park Station,
complainant filed EEO complaints against both her first-level supervisor,
RMO-1 and the Station Manager, RMO-2. These complaints resulted in
administrative hearings held in March and April of 1996.
4RMO-2 was the concurring official with regard to both complainant
and C-1. C-1 also received an official discussion from RMO-2 when he
and another employee placed someone in a hamper.
5At the hearing, however, RMO-2 was shown an affidavit from an employee
claiming that she, in fact, told RMO-2 that she had been struck by
the chair. (Hearing Transcript at pgs. 154-156).
6Based on RMO-1's demeanor at the hearing and an EEO counselor's report
concerning complainant's September 1994 counselor contact, the AJ found
RMO-1's testimony that she had no knowledge of complainant's prior EEO
activity was not credible.
7Hearing Transcript at pg. 47