01973500
02-23-2000
Shannon Williams, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.
Shannon Williams v. United States Postal Service
01973500
February 23, 2000
Shannon Williams, )
Complainant, )
) Appeal No. 01973500
v. ) Agency No. 1G-753-1013-96
) Hearing No. 310-96-5588X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Southeast/Southwest), )
Agency. )
)
______________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American) and
sex (male), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED in PART, REVERSED in PART.
Believing he was a victim of discrimination, complainant a Transitional
Clerk at the agency's main post office in Dallas, Texas, filed a formal
EEO complaint with the agency alleging alleged that he was subjected to
discriminatory treatment when a relief supervisor terminated him from
his position for "failure to follow instructions" on or about September
22, 1996. Complainant also alleged that he was harassed by the relief
supervisor on September 16, 1995. At the conclusion of the investigation,
complainant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). A hearing was held on
December 6, 1996. Thereafter, on January 15, 1997, the AJ issued a
Recommended Decision (RD) finding discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination by demonstrating with credible evidence that he was
terminated under circumstances that strongly suggested a departure by
the agency from its established termination policies and practices.
For instance the AJ stated that complainant's first line supervisor
(Supervisor 1) had the opportunity to observe complainant's behavior on
a frequent basis and was privy to any problems that complainant might
be having when working under the supervision of relief supervisors.
The AJ found Supervisor 1 was a credible witness when she testified that
complainant was by far, one of the best of the sixteen workers under her
supervision during the relevant time period. The AJ further noted as
relevant evidence, Supervisor 1's testimony noting that while she had
received some complaints from the relief supervisor about complainant's
work performance, her investigation revealed in one instance that a
complaint lacked substantiation and in other instances, determined that
no disciplinary action was warranted.
Although the AJ acknowledged the agency's attempt to articulate a
legitimate, nondiscriminatory reason for its actions, she concluded that
complainant proved, by a preponderance of the evidence, that the agency's
explanation was pretext for unlawful discrimination. Specifically,
the AJ took particular notice of the fact that the relief supervisor
(Responsible Official, RO) recommended complainant's termination after
supervising complainant for a maximum of 30 minutes. The RO accused
complainant of failing to keep the DBCS machine, he was assigned to work,
filled with mail for processing. However, the AJ found that complainant
presented credible evidence showing that the DCBS machine was in fact full
during the relevant time period. The AJ further noted as a weakness in
the RO's basis for complainant's termination, the fact that the RO had
to solicit the support of another relief supervisor (RO 2) because the RO
did not believe he could justify complainant's termination recommendation.
Also noted as significant evidence in complainant's pretext argument was
RO 2's testimony that complainant's unfavorable behavior (one incident
of alleged poor performance/behavior) RO 2 mentioned to RO 1 did not at
the time it occurred warrant any discipline.
Based on the above substantive evidence and additional findings regarding
the credibility of each agency witness, the AJ concluded that the
agency failed in its efforts to make it appear as though complainant's
termination was justified and in accordance with established procedures.
In addition to finding that the agency's explanation for terminating
complainant lacked credibility, the AJ was persuaded by complainant's
contentions that the RO was motivated by a discriminatory motive.
The AJ's based her conclusion on the fact that the RO placed complainant
in a situation where he was expected to operate the DCBS Machine (a
machine requiring two workers) at top capacity alone. In addition, the
AJ concluded that the RO reprimanded complainant for not keeping his DCBS
machine loaded when it was in fact loaded. The AJ also concluded that
the agency failed to present credible evidence refuting complainant's
contention that he was not given a sufficient supply of First Class mail
to perform adequately.
On appeal, complainant contends that the AJ's recommended decision
correctly decided his complaint. The agency contends that the AJ
incorrectly decided the matter. Therefore, the FAD should be upheld.
ANALYSIS AND CONCLUSIONS
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 regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. However, we note that the AJ made
no specific finding on the issue of harassment. On this matter, the
Commission agrees with the agency's FAD which essentially concluded that
complainant's harassment allegations, even if true, were not pervasive
or severe enough as to create an objectively hostile work environment (an
environment that a reasonable person would find hostile or abusive). See
EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 22
(1993). See also Backo v. United States Postal Service, EEOC Request
No. 05890894 (November 9, 1989).
Therefore, after a review of complainant's arguments on appeal,
the agency's response, and arguments and evidence not discussed in
this decision, the Commission REVERSES the FAD finding no race or sex
discrimination regarding complainant's termination and AFFIRMS the FAD
finding no harassment. The agency shall comply with the following order.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively reinstate complainant to his
transitional clerk position at the agency's main post office in Dallas,
Texas. Complainant shall also be awarded back pay, seniority and other
employee benefits from the date of the effective termination through
the date of complainant's reinstatement, along with any incurred and
reasonable attorney's fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The complainant shall cooperate
in the agency's efforts to compute the amount of back 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 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 clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency is directed to conduct training for the relief supervisor
who was found to have discriminated against complainant by requesting his
termination. The agency shall address this employees' responsibilities
with respect to eliminating discrimination in the workplace and all
other supervisory and managerial responsibilities under equal employment
opportunity law.
3.The issues of compensatory damages <2> and attorney's fees and costs
are REMANDED to the Hearings Unit of the appropriate EEOC field office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue
a final action in accordance with 29 C.F.R. �1614.110 within forty (40)
days of receipt of the Administrative Judge's decision. The agency shall
submit copies of the decision of the Administrative Judge and the final
agency action to the Compliance Officer at the address set forth below.
4. 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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its main post office in Dallas Texas,
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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
February 23, 2000
_______________ ___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Equal Employment Assistant
__________________________
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.
2 The Supreme Court upheld the Commission's authority to award
compensatory damages in a federal sector complaint. West v. Gibson,
119 S. Ct. 1906 (1999).