07a00012
08-23-2000
Nestor Talinao, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Nestor Talinao v. U.S. Postal Service
07A00012
August 23, 2000
.
Nestor Talinao,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A00012
Agency No. 1K201001298
Hearing No. 100-99-7240X
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency action concerning
his complaint of unlawful employment discrimination on the bases of
reprisal (prior EEO witness) and age (over 40) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.<1>
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against him based on the above factors when it
reassigned him from one area to another.
BACKGROUND
During the period in question, complainant was employed as a Maintenance
Mechanic in Field Maintenance at a District of Columbia facility of
the agency. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint. In it,
he alleged that the agency discriminated against him based on reprisal
(prior EEO witness) and age (over 40) when an agency manager<2> (1)
reassigned him to Building Maintenance in the same agency facility; (2)
instructed him to turn in keys for an agency vehicle he was previously
assigned; and (3) told him that he could be put out on the street for
refusing to turn in the vehicle keys.
At the conclusion of the complaint's investigation, complainant requested
a hearing before an EEOC administrative judge (AJ). The AJ, after
a hearing, found discrimination based on reprisal and age regarding
claim (1) and failure to state a claim regarding claims (2) and (3).
The agency issued a final order notifying complainant that it would
implement the AJ's decision regarding claims (2) and (3) but would not
implement her decision regarding claim (1). Also in its final order, the
agency appealed the AJ's decision regarding claim (1) to the Commission.
On appeal, the agency contended that the AJ erred when (1) she did not
require complainant to establish a prima facie case of discrimination
before shifting to the agency's burden to articulate a legitimate,
nondiscriminatory reason for its actions; (2) she looked solely at
demeanor for her credibility assessment; and (3) she determined that the
agency's articulated reason was pretextual. The complainant requests
that we reverse the agency's final action regarding claim (1).
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. McDonnell Douglas, 411 U.S. at 804. Although
this analysis was developed in the context of Title VII, it is equally
applicable to claims brought under the ADEA. Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979).
Complainant can establish a prima facie case based on age by showing: (1)
that he is a member of the protected group; (2) that he was qualified
for the position at issue; (3) that he suffered an adverse action;
and (4) that similarly situated employees not in his protected group
were treated more favorably. See McDonnell Douglas, 411 U.S. at 802.
Element (4) of the prima facie case for discrimination based on age could
be broader in that complainant could compare himself to a similarly
situated employee within his protected group who was significantly
younger. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
311-12 (1996). The Commission finds that complainant satisfied all
four elements necessary for a prima facie case of age. Complainant was
a 54 year old who was reassigned from Field Maintenance to Building
Maintenance although several coworkers significantly younger than he
were allowed to remain in Field Maintenance.
Complainant also alleged reprisal. In order to establish a prima facie
case of discrimination for an allegation of reprisal, complainant
must show: (1) that he engaged in prior protected activity, e.g.,
participated in a Title VII proceeding, opposed discrimination; (2) that
the responsible management official was aware of the protected activity;
(3) that he was subsequently disadvantaged by an adverse action; and, (4)
that there is a causal link between the protected activity and the adverse
employment action. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass. 1976), affirmed, 545 F.2d
222 (1st Cir. 1976). The 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 is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted). Generally, the Commission has held that nexus
may be established if events occurred within one year of each other.
Patton v. Department of the Navy, EEOC Request No. 05950124 (June 27,
1996).
In Fall 1997, complainant decided to be a witness for a former female
coworker who filed a sexual harassment complaint against one of the
agency managers.<3> Prior to his decision to be a witness, complainant
told a coworker and a supervisor what he saw happen between the former
female coworker and the agency manager. The coworker testified that
complainant shared what he saw with him and that, in February 1997, the
agency manager offered to give him privileges in exchange for remaining
silent about what complainant shared. In addition, the former female
coworker who left the agency in April 1997 testified that the agency
manager said that whatever complainant had to offer would not assist
her with her complaint. Complainant was reassigned in October 1997.
Accordingly, complainant established a prima facie case of reprisal.
Now that complainant has established a prima facie case of discrimination
based on age and reprisal, the agency must articulate some legitimate,
nondiscriminatory reason for its action. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). According to the record,
complainant was reassigned, with approximately nine other workers, to
Building Maintenance because there was an insufficient amount of work
for 19 workers in Field Maintenance. The Manager allowed those with the
broadest knowledge and who had the most seniority in Field Maintenance
to remain. We find that the agency has satisfied its burden.
Complainant must now show that the agency's articulated reason was mere
pretext for discrimination. Id. at 256. He may do this in one of two
ways, either directly, by showing that a discriminatory reason more
likely motivated the agency, or indirectly, by showing that the agency's
proffered explanation is unworthy of credence. Essentially, the fact
finder must be persuaded by the complainant that the agency's articulated
reason was false and that the actual reason was discriminatory.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
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 that discriminatory intent
did exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The AJ found that complainant established that the agency's articulated
reason was pretextual because complainant, his coworker and a union
steward testified that an agency manager said that younger males
were needed in the field; the two managers in testifying contradicted
one another; complainant had documentary evidence showing that he
received overtime prior to his reassignment, which contradicted one
of the manager's testimony about lack of work; a manager admitted that
complainant had broad knowledge and that he had seniority over several
employees who were later returned to the field. Based on the foregoing,
the Commission finds that complainant has established that he was
discriminated against as alleged.
CONCLUSION
After a careful review of the record and for the reasons cited above, it
is the decision of the Commission to REVERSE the agency's final decision
and find that complainant has established that the agency discriminated
against him as alleged.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer to reinstate complainant into the position
of Maintenance Mechanic in Field Maintenance, PS-5, or a substantially
equivalent position in Field Maintenance. The offer shall be in writing
and the complainant shall have fifteen (15) calendar days, from receipt
of the agency's written offer, to accept or reject.
(2) Regardless of whether complainant accepts or rejects the PS-5, Field
Maintenance Mechanic or substantially equivalent position, the agency
shall determine the appropriate amount of back pay, if any, with interest;
overtime pay, if any, with interest and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, less any appropriate offsets, no later
than sixty (60) calendar days after the date this decision becomes final.
The time period for purposes of back pay shall be from the effective date
of complainant's reassignment until the last day of the 15-day period
during which he can accept or reject the agency's offer or the effective
date of complainant's reinstatement to a PS-5, Field Maintenance Mechanic
position, whichever comes first. The complainant shall cooperate in
the agency's efforts to compute the amount of back pay, overtime 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, overtime 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.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for enforcement or clarification must
be filed with the Compliance Officer, at the address referenced in the
statement entitled �Implementation of the Commmission's Decision.�
(3) The agency shall pay complainant's reasonable attorney's fees and
costs in accordance with the paragraph below entitled, �Attorney Fees.�
(4) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, �Posting Order.�
(5) The agency shall conduct EEO training for the responsible management
officials cited in the complaint at issue herein. Such training shall
include, but not be limited to, training on the agency's obligations
under Title VII and the ADEA.
(6) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled �Implementation of the Commission's
Decision.� The report shall include a copy of the letter offering
complainant the PS-5 position as well as supporting documentation of
the agency's calculation of back pay, overtime pay and other benefits
due complainant.
POSTING ORDER (G1092)
The agency is ORDERED to post at its North East Washington, DC Processing
and Distribution Center 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2000
__________________
Date
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.
2There were two responsible management officials, the Manager of
Maintenance Operations and the Manager of Field Maintenance. The record
is unclear regarding whose decision it was to reassign complainant.
3Complainant gave an actual written statement on November 3, 1997.