Shannon Williams, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.

Equal Employment Opportunity CommissionFeb 23, 2000
01973500 (E.E.O.C. Feb. 23, 2000)

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).