0120130456
09-22-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120130456
Agency No. 1K-204-0019-11
DECISION
Complainant filed an appeal from the Agency's December 17, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic MPE at the Agency's Southern Maryland facility in Capital Heights, Maryland.
On October 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), national origin (Jamaican), age (56), and reprisal for prior protected EEO activity when, on June 28, 2011, the Agency issued Complainant an unwarranted Proposed Notice of Removal.
On November 25, 2011, the Agency dismissed the complaint for failure to state a claim, reasoning that "a proposed action does not create a direct and personal deprivation which would make the appellant aggrieved." Complainant filed an appeal (EEOC Appeal 0120121088) from the dismissal. On May 17, 2012, this office closed the appeal because the Agency rescinded its dismissal.
By letter dated April 19, 2012, the Agency notified Complainant that the Agency accepted his retaliation claim. The investigation shows that, prior to the events at issue, Complainant had filed nine prior EEO complaints. The responsible management official (S1) named in the current complaint was the same official named in his prior complaints. Complainant attests that S1 signed all of the mediated agreements and testified at an EEO hearing.
On June 28, 2011, Complainant's supervisor (S1) issued Complainant a Proposed Notice of Removal, charging him with Improper Conduct/Off Assignment Without Permission. On that same day, Complainant was placed on Administrative Leave and directed to turn in his identification to security and not to return. The concurring official was the Acting Manager of Maintenance Operations (S2). Also involved in the decision was the labor relations liaison (S3) who was consulted regarding the proposed removal action.
S1 states that the removal was based on "misconduct" that occurred on May 3, 2011. Specifically, S1 stated that Complainant was paged to work on some equipment on the radio he carried. At the time, Complainant was in the cafeteria getting coffee. When he did not respond to his radio, S1 indicated that he was also paged over the loud speaker. Eventually, another supervisor told Complainant that he was being paged and he reported to his work area. There was about seven minutes between the initial page and Complainant's return to his work area. Complainant explained to management that he was on an authorized break and the battery in his radio was dead, so he did not hear the pages. S1 asserted that Complainant being off his assignment caused a delay in starting certain mail sorting equipment. Complainant stated that the whole issue "could have been resolved if [S1] had walked 40 feet to Maintenance Control to verify Complainant's explanation that he was sent on break after clearing the last call."
When S1 served Complainant with the proposed removal notice, he placed him on administrative leave and told him not to return to work until a final decision had been made on the removal. Using the grievance procedures granted him under the collective bargaining agreement, Complainant challenged the notice of proposed removal. As a result, on July 11, 1011, the proposed removal was rescinded.
At the conclusion of the investigation on the matter, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency acknowledged that Complainant had filed nine prior EEO complaints involving S1 and "continues to request the payment of many EEO resolutions." However, the Agency determined that Complainant had not established a nexus between his prior EEO activity and the proposed removal because it occurred about six months after the closure of his most recent EEO complaint. The Agency found that the lack of temporal proximity did not establish the necessary causal link. Nevertheless, the Agency went on to find that responsible management officials articulated a legitimate, non-discriminatory reason for the proposed removal - the events as described above that occurred on May 3, 2011.
The decision then concluded that Complainant failed to prove that the Agency subjected him to unlawful retaliation as alleged because the Agency rescinded the notice of proposed removal and Complainant failed to establish a nexus between the actions and his prior EEO activity. Finally, the Agency concluded that Complainant failed to rebut its articulated legitimate reason for issuing the proposed removal. Therefore, the Agency concluded that no retaliation had been proven.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
The issue before us is whether the record supports the Agency's finding that it did not retaliate against Complainant when management proposed Complainant's removal and placed him on administrative leave. We further find that this appeal includes within its scope the June 28, 2011 notice of proposed removal, the events leading to the proposed notice and the placement on administrative leave.
Both Section 717 of Title VII and Section 633a of the ADEA specifically require that all personnel actions affecting federal employees "be made free from any discrimination." A claim of discriminatory disparate treatment may be examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must present facts that, if unexplained, reasonably give rise to an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder, by a preponderance of the evidence, that a prohibited consideration was a factor in the adverse employment action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
First, we are not persuaded by the Agency's argument that there can be no finding of retaliation because Complainant did not show a temporal nexus to his EEO activity. The record is clear that Complainant had filed nine prior EEO complaints involving S1, and had entered into several EEO settlement agreements with him. S1 had also been called to testify at an EEO hearing on one of the complaints. The record also shows that Complainant was actively engaged with the Agency in disputing its compliance with some the terms of the settlement agreements he had with S1. These facts are sufficient to create an initial inference that the proposed removal was motivated, at least in part, by retaliatory animus.
During the investigation, S1 articulated a legitimate, nondiscriminatory reason for the proposed removal - the events of May 3, 2011. Once the responsible management official has proffered a legitimate, non-discriminatory reason for the disputed action, the burden shifts to the complainant to prove, by a preponderance of the evidence, that retaliatory animus played a role in this matter. We find that Complainant has met this burden.
The application of the Agency's misconduct and behavior policies would be legitimate if warranted here. However, the Agency does not provide any explanation for why Complainant was issued the proposed removal nearly two months after the May 3 incident when even the most basic of inquiries would have verified Complainant's explanation to S1 that he was sent on a break by Maintenance Control and had informed a supervisor that his radio was defective. This was later verified by the maintenance control official who provided him with the new battery. For this very reason, the proposed removal was rescinded as soon as Complainant filed a grievance on the matter. Moreover, there is nothing in the record that shows that the Agency's mail processing systems were harmed by the seven minute delay at issue when Complainant was on his break.
The record also provides no credible reason for why Complainant was ordered to leave the premises and placed on administrative leave after being served with the notice of proposed removal. It appears that the more common practice at the Agency was for employees to continue working during the time between a proposed disciplinary action and its effective date. Inexplicably, the final agency decision indicates that Complainant was placed on administrative leave prior to his removal taking effect because his management was "fearful that he may injure himself in the final days prior to his removal." The evidence of record provides absolutely no evidence to support this claim. Pretext may be demonstrated by showing the weaknesses and inconsistencies in the Agency's proffered reasons for its action that a reasonable fact-finder could rationally find them unworthy of credence. We find that it is just as likely that S1 placed Complainant on administrative leave to intimidate him due to his prior EEO activity, knowing that the facts would not support the proposed removal and it would eventually be rescinded.
For all of these reasons, we find that Complainant is entitled to a finding of discrimination on the basis of retaliation and is entitled to full relief. Because we are rendering our decision on the basis of retaliation, we need not address the Agency's failure to address Complainant's claims of race, national origin or age discrimination.
Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e. out of pocket expenses) and non-pecuniary losses (e.g. pain and suffering, mental anguish).
CONCLUSION
After a thorough review of the record, we REVERSE the final decision, based on the reasoning herein. We REMAND the matter for consideration of the appropriate relief.
ORDER
The Agency is ordered to take the following remedial actions:
1. Within thirty (30) days of receipt of the final decision, the Agency shall, to the extent it has not already done so, rescind the proposed removal imposed for the May 3, 2011 incident, and shall expunge from Complainant's personnel records any and all references related to this matter, including the proposed notice of removal, and any final decision on that proposal.
2. Within 30 days of the receipt of the final decision, the Agency shall restore any pay lost as a result of the proposed and/or effectuated removal, with interest, and/or any leave that was taken as a result of the proposed removal and removal. 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 thirty (30) calendar days of the date this decision becomes final. 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."
3. Within thirty (30) days of receipt of the final decision, the Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, if any, and shall afford him an opportunity to establish a causal relationship between the prohibited actions found to be unlawful and any pecuniary or non-pecuniary losses. The Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages, and shall provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages. 29 C.F.R� 1614.110. The supplemental investigation and issuance of the final decision shall be completed within sixty (60) calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer, as referenced below.
4. The Agency shall provide training to the management officials who were responsible for the discriminatory actions taken against Complainant concerning their responsibilities with respect to eliminating discrimination in the federal workplace.
5. The Agency will consider taking disciplinary action against the management official who was responsible for the discriminatory actions taken against Complainant. The Agency shall report its decision to OFO in its Compliance Report and, if the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
6. The Agency shall post a notice in accordance with the paragraph below.
7. The Agency shall provide reasonable attorney's fees and costs, if appropriate.
8. 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
The Agency is order to post at its Southern Maryland Processing and Distribution Center facility in Capitol Heights, Maryland 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 77960, Washington, DC 20013. 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 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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, Director
Office of Federal Operations
September 22, 2014
__________________
Date
2
0120130456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130456