Robert Snow, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJul 21, 2000
01971320 (E.E.O.C. Jul. 21, 2000)

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�).