01A21514
07-30-2002
Pargat Sandhu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pargat Sandhu v. United States Postal Service
01A21514
07-30-02
.
Pargat Sandhu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21514
Agency No. 1F-953-0004-01
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Supervisor, Distribution Operations at the agency's
Stockton, California P&D Center. Complainant sought EEO counseling and
subsequently filed a formal complaint on May 7, 2001, alleging that he
was discriminated against on the bases of race (East Indian) and reprisal
for prior EEO activity when on a continuing basis since January 12, 2001,
he has been asked to perform duties for which he is not responsible (claim
#1), required to supervise two operations at the same time (claim #2),
and had his days off changed (claim #3).
Complainant contends that on October 2, 2000, a Management Official
(MO-1) made racist comments to another supervisor. MO-1 admits in her
affidavit that she told the complainant that she �did not want to f*****
work with you� and said to another East Indian employee �maybe you can
work with your Indian friend Paul [complainant].� Complainant filed
an EEO complaint on October 30, 2000, but later withdrew the complaint
after he received assurances from MO-1's supervisor, MO-2, that MO-2
would not tolerate racist comments on the work room floor. However,
complainant contends in the current EEO complaint that MO-2 favors MO-1
and has retaliated against him.
The retaliation the complainant claims he has been subjected to
involves one particular incident in which, when MO-1 was acting as the
complainant's supervisor, MO-1 told the complainant to make overtime calls
to mailhandlers and threatened that if he did not follow instructions
today, she would �deal with him� when she was acting as his supervisor
again in the future. The complainant also asserts that he has been
asked to run two operations at the same time. Finally, complainant
claims that beginning with the reporting of the October 2, 2000,
incident and through the filing of the instant complaint, both MO-1 and
MO-2 changed his �days off from Sat./Sun. to Tue./Wed. to Thurs./Fri.,
Wed./Thurs. even split�. With respect to this claim complainant asserts
this change in schedule caused him great inconvenience, as the Management
Officials changed his days off during his annual scheduled week off and
other supervisors have fixed days off.
At the conclusion of the investigation, complainant was informed of
his 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. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to prove a prima
facie case of race and retaliation discrimination. The agency decided
that, although the complainant is a member of several protected groups,
he failed to establish a difference in treatment compared to similarly
situated individuals not within the protected class. The agency also
found that the complainant failed to establish a causal connection
between his prior EEO activity and the action of which he complained.
The agency did, however, continue its analysis and assumed arguendo
that the complainant established a prima facie case of discrimination.
After having assumed a prima facie case of discrimination, the agency
concluded that it did not discriminate against the complainant because
it had articulated a legitimate, nondiscriminatory reason for its
actions which the complainant failed to show was pretextual. The agency
concluded that the complainant presented no evidence that he was the
only supervisor requested to supervise two shifts or that the request
was not based solely on his race or in retaliation. The agency also found
that although he was requested to supervise two shifts and make calls to
overtime mailhandlers, he did not do so and was not punished as a result
of his failure to comply with the requests from MO-1. The FAD fails to
address the complainant's complaint regarding MO-1 and MO-2 changing
his days off. The agency concluded that based on the allegations raised,
the complainant failed to show discrimination occurred.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed
with when the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
With respect to claims #1 and #2, we find that the agency articulated
legitimate non-discriminatory reasons which the complainant did not prove
were pretext for discrimination. The complainant asserts that he was
asked to supervise two shifts when other supervisors were not, however,
he provides no clear examples of such occurrences. MO-2 asserts that the
agency often asks supervisors to take on two shifts when the scheduled
shift is shorthanded. Complainant does not provide instances when he was
asked to cover two operations when the shift was not shorthanded, or when
other similarly situated individuals were not asked to cover and he was.
Furthermore, on the night in question in the complaint, January 12,
2001, MO-1 asserts that she asked the complainant for his help, he did
not comply, but was not punished. While the complainant also contends
that he was asked to perform duties for which he was not responsible,
the only instance the complainant points to is when, on the same day,
MO-1 asked him to make the next day's overtime calls for the mailhandlers.
MO-1 admits that she did ask the complainant to perform this duty, but
that no adverse action was taken against him when he refused to do so.
Therefore, the Commission agrees with the agency that there was no
discrimination with respect to complainant's claims #1 and #2.
We find that complainant has proven a prima facie case of reprisal
with respect to claim #3, that his days off were repeatedly changed.
Specifically, in a reprisal claim, in accordance with the burdens set
forth in McDonnell Douglas, and 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), complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of his protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency; and
(4) a nexus exists between the protected activity and the adverse action.
Whitmire v. Department of the Air Force, 01A00340 (September 25, 2000).
In finding that complainant has established his claim, we note that
complainant contacted an EEO Counselor regarding the October 2, 2000,
incident with MO-1 and filed a complaint, Agency No. 1F-953-0003-01,
against MO-1 and MO-2. MO-1 and MO-2 were both aware of his protected
activity, in that MO-1 admits to the entire October incident and
asserts she thought the incident was resolved. Complainant contends that
following the October 30, 2000, filing of his first complaint and through
the filing of the instant complaint, MO-1 and MO-2 constantly changed
his days off causing him great inconvenience. Complainant also indicated
that he had his days off changed during his annual scheduled week off and
that most supervisors have their days off fixed. Complainant points to
four separate individuals he asserts were treated differently than him.
Based on the time between the protected activity and the agency's action,
we find that retaliation may be inferred.
The burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. While the burden of
production is not onerous, the agency must nevertheless make some
effort to furnish specific, clear and individualized explanations for
the treatment accorded the affected employees. The agency must give
the complainant some rationale that provides him with an opportunity to
satisfy his ultimate burden of proving that the proffered explanation
was a pretext for discrimination. See Brooks v. United States Postal
Service, EEOC Request No. 05930625 (May 19, 1994). Upon review of
the record, we find that the agency did not meet this burden with
respect to complainant's claim regarding changing his days off.
While affidavits were submitted by both MO-1 and MO-2, neither of
them offer any legitimate, nondiscriminatory reason for their actions.
In addition, the agency's FAD recognizes the complainant's claim with
respect to changing his days off, but does not provide any analysis
or finding on the issue. Accordingly, we find that complainant has
established his claim as to the agency changing his days off.
CONCLUSION
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's decision with respect to claims #1 and #2, and REVERSE and
REMAND with respect to claim #3.
ORDER
The agency is ordered to take the following remedial action within sixty
(60) days of the date this decision becomes final:
The agency shall reinstate the complainant's fixed days off to the days
off he had prior to October 2, 2000, which according to the record before
us appears to be Saturdays and Sundays, provided complainant is currently
serving as a Supervisor, Distribution Operations at the agency's Stockton,
California facility. Any changes to complainant's days off in the future
shall be determined in accordance with agency policy.
The agency shall consider taking disciplinary action against the
individuals identified in the agency's final decision as MO-1 and MO-2,
since these individuals were identified as being responsible for the
discriminatory acts at issue in this complaint. 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 these individuals have
left the agency's employ, the agency shall furnish documentation of
their departure date(s).
The agency shall provide EEO training to MO-1 and MO-2, if they are
still employed by the agency. The training shall focus on the rights and
responsibilities of management under federal employment discrimination
statutes.
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 (G0900)
The agency is ordered to post at its Stockton, California P&D 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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), 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
____07-30-02______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20036
NOTICE TO EMPLOYEES
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 Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Postal Service, Stockton, California P&D Center,
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, Stockton, California P&D Center, has
been ordered to remedy an employee affected by the Commission's finding
that he was discriminated against because of retaliation when the agency
took an adverse action against him. As a remedy for the discrimination,
the facility was ordered to determine the appropriate award for
compensatory damages, provide EEO training to management officials,
and provide the employee with a schedule of fixed days off. The United
States Postal Service, Stockton, California P&D Center, will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The United States Postal Service, Stockton, California P&D Center, 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