01971320
07-21-2000
Robert Snow, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.
Robert Snow v. United States Postal Service
01971320
July 21, 2000
.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
Robert Snow,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific/Western Region),
Agency.
Appeal No. 01971320
Agency No.4U-1509-92
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), national origin (African American), sex (male),
reprisal (prior EEO activity), and physical disability (foot injury),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> Complainant alleges that he was discriminated
against when he was removed from his position. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the agency's decision
is VACATED and the complaint is REMANDED.
ISSUE PRESENTED
The issue presented by this appeal is whether the agency committed
reversible error in finding that 1) complainant failed to establish
a prima facie case of discrimination; 2) the agency articulated a
legitimate, nondiscriminatory reason for its action; 3) complainant
failed to prove that the agency's explanation for its action was a
pretext designed to conceal discriminatory animus; and 4) complainant
failed to prove entitlement to compensatory damages.
BACKGROUND
The record reveals that during the relevant time period, complainant
was employed as a Distribution Clerk at the agency's Denver, Colorado
Bulk Mail Center. In 1992, the agency removed complainant from his
position on the ground that complainant had engaged in �unacceptable
conduct with regard to submission of altered medical documents.� In
response, complainant filed several grievances and a formal EEO complaint.
Complainant's grievances were submitted to arbitration. The arbitrator
ruled for complainant on the merits of the grievances, finding that
the agency had failed to prove that complainant had been removed �for
just cause� and ordering that complainant be reinstated with back pay,
including interest.
In light of complainant's reinstatement, the agency determined that
complainant's EEO complaint was moot. Accordingly, in a final agency
decision dated March 9, 1993, the agency dismissed the complaint.
Complainant appealed the FAD to the Commission. We reversed and remanded,
finding in relevant part, that complainant's claim for compensatory
damages as set forth in his formal EEO complaint was not rendered moot
by his reinstatement. We ordered that on remand the agency investigate
complainant's allegations �in accordance with 29 C.F.R. � 1614.108.�<2>
Snow v. United States Postal Service, EEOC Appeal No. 01932256 (February
3, 1994).
On remand, the agency conducted an investigation into the stated grounds
for the agency's decision to remove complainant, i.e. whether complainant
had been guilty of falsifying medical documents. No investigation was
conducted into the merits of complainant's underlying claim that his
removal had been motivated by discriminatory animus.
At the conclusion of the investigation, the agency issued a second FAD.
The FAD concluded that complainant failed to establish a prima facie case
of discrimination because he presented no evidence that similarly situated
individuals not in his protected classes were treated differently under
similar circumstances. In addition, the FAD concluded that the agency
had articulated a legitimate nondiscriminatory reason for its actions
which complainant failed to prove was a pretext for discrimination.
The FAD also purported to dismiss the claim as moot under 29 C.F.R. �
1614.107(e).<3>
From the FAD, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
Under the analytical framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and its progeny, Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981) and St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993), an agency will prevail against an
employee's claim of illegal employment discrimination if 1) the employee
fails to prove the elements necessary to make out a prima facie case
of discrimination or 2) the agency is able to articulate a legitimate
basis for its actions which the employee is unable to rebut.
In the instant case, the agency contends the complainant did not establish
a prima facie case because he failed to show that he had been �treated
differently than any other comparative employee in a similar situation.�
We are unable to assess the correctness of the agency's position on
this point because the record is devoid of evidence on the question of
whether other persons outside complainant's protected groups have received
less severe discipline than did complainant under similar circumstances.
The agency conducted no investigation on this issue on remand, despite
our directive to the contrary.
Nor can we affirm the FAD on the ground that the agency has articulated
a legitimate reason for its action which complainant has been unable
to rebut. The agency's stated reason for its action is the misconduct
of complainant in falsifying medical documents. This is the same ground
the agency unsuccessfully asserted in the grievance arbitration in which
complainant prevailed. Having had this issue resolved against it in a
previous proceeding, the agency is collaterally estopped from raising
the issue in this case.
The Commission previously has held that the doctrine of collateral
estoppel is applicable to discrimination claims. See Fitz-Gerald v. TVA,
EEOC Request No. 05910573 (January 16, 1992). Under the doctrine of
collateral estoppel, "once an issue is actually and necessarily determined
by a court of competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action involving a party
to the prior litigation." Montana v. United States, 440 U.S. 147, 153
(1979) (citing Parklane Hosiery Co., Inc v. Shore, 439 U.S. 322, 326
n.5 (1979); see also Buchhagan v. Dep't of Health and Human Services,
EEOC Request No. 05940948 (June 3, 1996).
A determination as to whether it is appropriate to apply the doctrine
includes the following: 1) whether the issues presented in the
present litigation were in substance the same as those resolved in
the prior litigation; 2) whether controlling facts or legal principles
have changed significantly since the prior judgment; and, 3) whether
other special circumstances warrant an exception to the normal rules
of preclusion. Montana, 440 U.S. at 154-55. In the instant case,
all of these factors favor the imposition of collateral estoppel to
preclude the agency from relitigating the issue of complainant's guilt.
See also Snead v. PBGC, EEOC Request No. 05990239 (March 25, 1999)(issue
preclusion based on grievance arbitration).
Based on the above, the Commission concludes that this record lacks the
necessary information upon which to base a supportable adjudication.
See 29 C.F.R. � 1614.404. Therefore, we VACATE the FAD and REMAND
this matter for further investigation. The investigation shall
develop information with respect to the area of deficiency discussed
above and any others that become readily apparent as a result of this
further exploration of the facts. Upon completion of the supplemental
investigation, the agency shall issue a final agency decision in
accordance with the regulation set forth at 64 Fed. Reg. 37,644, 37657
(1999) (to be codified as 29 C.F.R. � 1614.110).<4>
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to VACATE the agency's FAD and REMAND this matter for further
processing in accordance with this decision and the applicable EEOC
complaint processing procedures. This decision does not constitute a
decision on the merits of complainant's complaint.
ORDER (B1092)
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
(1) The investigator shall obtain evidence concerning any similarly
situated agency employees, not of complainant's protected groups, who
have been accused of making false statements or submitting false or
altered documents, including, in particular, any evidence indicating
the reason for any disparity in treatment that may have occurred.
(2) The investigator shall obtain evidence concerning the agency's
actual motivation for removing complainant, excluding evidence relating
to complainant's alleged falsification of medical records.
(3) Complainant shall be given the opportunity to respond to any
additional testimony obtained by the agency through a supplemental
affidavit.
Thereafter, the agency shall issue a final agency decision pursuant to 29
C.F.R. � 1614.110 addressing the question of whether the record evidence
establishes a prima facie case of discrimination and whether complainant
has proven intentional discrimination. The supplemental investigation
and issuance of the final agency decision must be completed within 60
calendar days of the date this decision becomes final. A copy of the
notice must be submitted to the Compliance Officer, as referenced below.
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).
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, Acting Director
Office of Federal Operations
July 21, 2000
__________________
Date
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.
2At the time of the remand in this matter, � 1614.108 provided, in
part, that �the agency shall develop a complete and impartial factual
record upon which to make findings on the matters raised by the written
complaint.� Revised regulation 64 Fed. Reg. 37,644, 37,656-7 (1999)
(to be codified as 29 C.F.R. � 1614.108) now provides, in part, that �the
agency shall develop an impartial and appropriate factual record upon
which to make findings on the claims raised by the written complaint.
An appropriate factual record is one that allows a reasonable fact finder
to draw conclusions as to whether discrimination occurred.�
3Now revised as 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29
C.F.R. � 1614.107(a)(5).
4We have held that the agency is precluded from justifying removal
of complainant on the ground that he had falsified medical records.
However, we do not rule out the possibility that the investigation
on remand may develop facts showing that there were nondiscriminatory
reasons other than those articulated by the agency for its removal of
complainant. Such a finding might permit the agency to avoid liability.
See Reeves v. Sanderson Plumbing Products, Inc. 120 S.Ct. 2097, 2109
(2000)(("[I]f the circumstances show that the defendant gave the false
explanation to conceal something other than discrimination, the inference
of discrimination will be weak or nonexistent�).