Mitzi G. Baker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 3, 2000
01980310 (E.E.O.C. May. 3, 2000)

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