0120091674
07-06-2010
David E. Boswell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
David E. Boswell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120091674
Agency No. 1J-461-0030-08
DECISION
On March 7, 2009, Complainant filed an appeal from the Agency's February
9, 2009 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
MODIFIES the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that he was subjected to retaliatory
terms and conditions of employment, including being subjected to
retaliatory comments, and by being required to submit his Pay For
Performance-(PFP)-core-requirements to his Manager instead of to the
Postmaster.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Manager, Maintenance at the Bloomington, Indiana Mail Processing Annex.
On March 29, 2008, Complainant filed an EEO complaint alleging that he
was discriminated against on the basis of reprisal for prior protected EEO
activity [under Title VII], when, on January 11, 2008, he was subjected to
retaliatory terms and conditions of employment, including being prevented
from submitting his PFP-core-requirements.1
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
Final Agency Decision (FAD)
The FAD found that Complainant testified that he had initially tried
to submit his PFP core requirements to the Postmaster (PM) via the
Performance Evaluation System [PES]. Complainant averred that he was
prevented from submitting his PFP core requirements to the PM and was told
to submit it to A-1, his Manager, instead. Complainant objected because
the Great Lakes Area had determined that his facility was not a plant and
that all managers should report to the Postmaster. The Agency's position
was that only A-1, the Manager, Mail Processing, was to report to the PM.
The FAD also noted that Complainant maintained that management's actions
included increased surveillance, excessive supervision, and greater
demands placed upon him, however, he provided no specific information.
Complainant did, however, specify an incident whereby A-1 allegedly
belittled him by telling a supervisor that he was going to take away
Complainant's Blackberry because Complainant did not deserve it.
The FAD then found that assuming an adverse action occurred, there
was no proof that Agency officials took the actions at issue because of
Complainant's prior protected EEO activity or sought to deter Complainant
or others from engaging in such activity. Although A-1 admitted making
comments about Complainant's prior EEO activity in casual conversation,
the FAD found that there was no evidence in the record that management
had instructed Complainant to submit his PFP core requirements to A-1
because of his prior EEO activity or to deter Complainant or others from
exercising their rights.
The FAD additionally noted that Complainant had submitted his PFP to
A-1 in previous years as well and that management's instructions merely
reflected the status quo. Accordingly, the FAD found that Complainant
failed to establish a prima facie case of retaliation discrimination.
Finally, the FAD found that the Agency articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, A-1 that he had
handled Complainant's PFP evaluations for the past 3-4 years and that
"out of the blue", Complainant had submitted his PFP core requirements to
the PM. A-1 indicated that the PM returned Complainant's PFP submission
because he was not Complainant's direct supervisor. The PM and A-1
stated that they met with Complainant and Complainant indicated to them
that he did not think he should have to report to A-1. The PM further
explained that when he found out a few months later that Complainant had
still not submitted his PFP core requirements, he met with Complainant
and agreed to let him submit the PFP core requirements to him, but that
A-1 would review them. The FAD concluded that there was no evidence
of pretext, noting in part, that the Blackberry was never taken away
from Complainant.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that management subjected him to a series
of retaliatory adverse employment actions such as unfavorable changes in
working conditions, unjustified negative evaluations, unjustified negative
references and increased surveillance. He also states that management's
actions of not permitting him to attend important job related meetings,
a party to award a good performance year, a diminution in his job
responsibilities, and a low performance rating, are retaliatory actions
as they "in a whole are not-so-subtle ways of sending me a message that
discourages protected EEO participation." The Agency asks the Commission
to affirm the FAD.
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 EEOC Management
Directive 110, 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 statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual "goes to the issue of damages, not liability." Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination-whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]''). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998)
Initially, we note that Complainant has alleged that he is the victim
of reprisal for his prior EEO activity. He has listed in his complaint
a series of incidents that affected the terms and conditions of his
employment, not only the incident concerning the PFP. Further, we find,
contrary to what the Agency has found, that Complainant described several
other incidents of alleged retaliation with specificity. For instance,
he stated all of the following in his formal complaint: he was not
invited to the holiday party in December 2007; he did not receive an
award that other supervisors, managers and Postmaster received last year;
he was not permitted to interview or participate in the selection of
candidates for the Supervisor, Maintenance Operations position; and he
was not permitted to participate in the Local Memorandum of Understanding
even though there were some issues involving maintenance.
The Agency, however, focused almost entirely on the issue concerning the
submission of the PFP core requirements. The Agency provided little to
no response concerning some of Complainant's claims, i.e., he was given
unjustified negative evaluations and references. While the Agency's
burden of production is not onerous, it must nevertheless provide a
specific, clear, and individualized explanation for a challenged action
so that Complainant is provided with an opportunity to prove that the
Agency's explanation was a pretext for discriminatory animus. See Boston
v. United States Postal Service, EEOC Appeal No. 0120042074 (May 26,
2004) (Commission held that the Agency failed to meet its burden of
production by merely stating in two short affidavits that the selectee
was "not the best qualified for the position").
The Agency did address the issue concerning Complainant's Blackberry.
As to the alleged comment about the Blackberry, A-1 responded as
follows:
Complainant's SMO... was a newly appointed member of the Emergency
Management Team. I mentioned that he would probably make better use
of the Blackberry than Complainant does. There have been occasions
where attempts to reach [Complainant] via Blackberry after hours have
been fruitless. [Complainant] is marginally involved in the day to day
operations of the maintenance and mail processing operation at times. [The
SMO] was very involved.
ROI, Affidavit B, at 4. We are not persuaded that this particular
statement was retaliatory in nature. In addition, the Commission
cannot conclude, based on this record, that the PM's requirement that
Complainant submit his PFP-core-requirements to A-1, as opposed to
the PM, was motivated by retaliatory animus. The Agency provided a
legitimate explanation for this action, and Complainant did not provide
persuasive evidence of pretext. There is simply no basis for concluding
that the PM required Complainant to submit the PFP core requirements to
A-1 in order to retaliate against him because of his prior EEO activity.
We note in this regard that there is no evidence that Complainant was
treated any differently than similarly situated employees who had not
engaged in prior EEO related activity. In so finding, we note that
we do not have the benefit of an Administrative Judge's findings after
a hearing, and therefore, we can only evaluate the facts based on the
weight of the evidence presented to us.
Notwithstanding the above, however, we note that A-1 was asked the
question whether he told Complainant "I know you filed an EEO. You better
be careful what you wish for. You don't always get what you want."
A-1 responded that, "In early January 2008, I may have said something
to that effect, but I don't recall the exact words. I was referring to
his previous EEO case involving him not being able to get a supervisor
quickly enough." ROI, Affidavit B, at 2.
In addition, Complainant alleged that on March 17, 2008, A-1 came to
his office and angrily said in a loud and intimidating voice, "Boy, how
many EEOs do you have going? Do you know?" A-1 responded to this claim
by stating "I think I may have said something like that in a casual
conversation. It certainly had no bearing on any of [Complainant's]
EEO activities per se." ROI, Affidavit B, at 2. We find that there
is no doubt that a supervisor twice making such comments to an employee
would be "chilling", in that they would be reasonably likely to deter the
employee or others from engaging in protected activity. The Commission
therefore, concludes that Complainant was subjected to retaliatory terms
and conditions of employment.
We are also persuaded, based on the Agency's virtual silence regarding
these claims and A-1's comments, that Complainant was subjected to
increased surveillance, excessive supervision, and greater demands because
of his EEO activity between January 2008 and March 2008. He also contends
in his formal complaint that he was not invited to the holiday party in
December 2007. The Agency also did not provide a response to this claim.
Thus, we find that Complainant was subjected to retaliatory terms and
conditions of employment during the period of time beginning with the
December 2007 holiday party through the end of March 2008.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the FAD.
ORDER
The Agency is ordered to take the following remedial actions.3
(1) The issue of compensatory damages is REMANDED to the Agency. On
remand, the Agency shall conduct a supplemental investigation on
compensatory damages, including providing the Complainant an opportunity
to submit evidence of pecuniary and non-pecuniary damages. For guidance on
what evidence is necessary to prove pecuniary and non-pecuniary damages,
the parties are directed to EEOC Enforcement Guidance: Compensatory and
Punitive Damages Available Under � 102 of the Civil Rights Act of 1991
(July 14, 1992) (available at eeoc.gov.) The Agency shall complete
the investigation and issue a final decision appealable to the EEOC
determining the appropriate amount of damages within 150 calendar days
after this decision becomes final.
(2) Within sixty (60) days from the date this decision becomes final,
the Agency is ordered to provide at least eight (8) hours of training to
the responsible management officials on the laws prohibiting employment
discrimination, paying particular attention to the topic of retaliation.
(3) The Agency shall consider taking disciplinary action against A-1.
The Commission does not consider training to be disciplinary action.
The Agency shall report its decision to the Compliance Officer. 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. If any of
the responsible management officials have left the Agency's employ, the
Agency shall furnish documentation of their departure including dates.
(4) The Agency shall post a notice in accordance with the paragraph
below.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The United States Postal Service is ordered to post at its Bloomington,
Indiana Mail Processing Annex 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
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 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 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
___7/6/10_______________
Date
1 The Agency initially dismissed the complaint, and Complainant appealed
the dismissal to the Commission. In Boswell v. United States Postal
Serv., EEOC Appeal No. 0120082611 (August 14, 2008), the Commission
reversed the dismissal on the grounds that Complainant had stated a claim.
The decision noted that Complainant claimed that the Agency retaliated
against him by placing him in unfavorable working conditions, by giving
him unjustified negative evaluations and references, by not permitting
him to attend important job-related meetings, and by giving him less
than expected or deserved performance ratings.
2 We find that the Agency's failure to articulate a specific, clear,
and individualized explanation for its actions, denied Complainant a
fair opportunity to demonstrate pretext. See Young v. Department of the
Treasury, EEOC Request 05940517 (October 13, 1995).
3 In his formal complaint, Complainant asked for "the most complete relief
possible to eliminate the effects of discrimination." He has therefore,
essentially, asked for compensatory damages.
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0120091674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091674