01973192
06-20-1999
Paula A. Cupelo, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, N.E./N.Y. Metro Region Agency.
Paula A. Cupelo, )
Appellant, )
) Appeal No. 01973192
v. ) Agency No. 4B-120-1106-95
) Hearing No. 160-96-8358X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
N.E./N.Y. Metro Region )
Agency. )
)
)
DECISION
The appellant timely initiated an appeal from a final agency decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination. She alleges discrimination on the bases of
sex (female), reprisal (prior EEO activity), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appellant alleges she was discriminated against when she was suspended
for an altercation with another male employee who was not disciplined. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that the appellant, a distribution/window clerk at
the agency's Solvay Branch in Syracuse, New York, filed a formal EEO
complaint with the agency on August 23 , 1995, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, the appellant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ) on
March 12, 1996. Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a
Recommended Decision after a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of sex discrimination or reprisal because she failed to prove that
she was treated less favorably than similarly situated male employees.
He concluded that the male employee who was involved in the altercation
had not engaged in the same behavior as the appellant and therefore,
was not similarly situated.
Furthermore, the Administrative Judge found that the appellant did
not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination and retaliation.
In reaching this conclusion, the Administrative Judge found that she
had not produced witnesses to corroborate her testimony about how the
incident occurred.
The agency's final decision adopted the Administrative Judge's Recommended
Decision finding no discrimination.
On appeal, the appellant contends that the Administrative Judge erred
when he refused to allow her witnesses to testify. She contends that one
witness(DM) was in the area at the time of the incident and presumably
would have corroborated the appellant's version of the events. The other
witnesses (DC and ML) she contends, would have offered the inconsistent
statements of the managers about the lack of severity of the incident.
The agency only objected to two out of three of the appellant's witnesses.
After a careful review of the record, the Commission finds that
the Administrative Judge abused his discretion in not allowing the
appellant's fact witness and at least one impeachment witness to testify
without explanation. See, Malley v. Department of the Navy, EEOC No.
01951503 (May 22, 1997); See e.g., Chedick v. Nash et.al., 151 F.3d
1077, 1084 (D.C. Cir. 1998); Tommy Swanson v. GSA, 110 F.3d 1180(5th
Cir. 1997). We found no reason stated in the record to exclude the
appellant's witnesses and therefore, we cannot independently conclude
that the decision was proper. In addition, the appellant's proffer of
the witnesses' expected testimony leads us to conclude that the evidence
was relevant to the appellant's prima facie case and the issue of pretext.
We further observed that in finding no discrimination, the Administrative
Judge did not discuss the comparative data in the record. This data
indicates that females who had engaged in EEO activity were suspended
when compared to the more favorable treatment given to males who had
not engaged in EEO activity. This evidence is probative on the issue
of reprisal and should be considered and weighed with all of the other
evidence before reaching a conclusion on whether discrimination occurred.
CONCLUSION
For all of the foregoing reasons, we REVERSE the Agency's finding of
no discrimination and REMAND the case back for a new hearing consistent
with this decision.
ORDER
The agency is ORDERED to process the remanded allegation and to
conduct a supplemental investigation by taking the statements of the
appellant's fact witness and one impeachment witness in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded allegation within thirty (30) calendar days of
the date this decision becomes final. The agency shall issue to appellant
a copy of the supplemental investigative file and also shall notify
appellant of the appropriate rights within ninety (90) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request. If the appellant requests
a hearing such shall be given with the right to call a fact witness and
an impeachment witness as discussed in this order.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
6/20/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations