Gloria Waddill, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionMay 3, 1999
01982291 (E.E.O.C. May. 3, 1999)

01982291

05-03-1999

Gloria Waddill, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Gloria Waddill, )

Appellant, )

)

v. ) Appeal No. 01982291

) Agency No. 4E-852-1061-95

William J. Henderson, ) Hearing No. 350-96-8124X

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

______________________________)

DECISION

On January 26, 1998, Gloria Waddill (appellant) timely appealed the

final decision of the United States Postal Service (agency), dated

December 29, 1997, which concluded that she had not been unlawfully

retaliated against in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq., the Age Discrimination

in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.,

and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.

In her complaint, appellant had alleged that officials at the agency's

Sun Station in Tucson, Arizona, discriminated against her on the bases

of her national origin (Hispanic), sex (female), age (46; DOB: 12-11-48)

and/or physical disability (head injury resulting in migraine headaches)

when she was terminated as a transitional employee and given a casual

appointment on November 18, 1994, and then terminated from the casual

appointment on December 31, 1994. This appeal is accepted in accordance

with the provisions of EEOC Order No. 960.001.

The record reflects that appellant was initially employed by the agency

as a casual employee in July 1992. She was converted to an transitional

employee (TE) appointment in February 1993. As a TE appellant received

a higher hourly wage than as a casual. In August 1993, appellant

was injured on-the-job when she walked into a tree and hit her head.

She testified that she experiences migraine headaches as a result of

this injury. Appellant's one- year appointment as a TE ended in February

1994, but after a six-day break in service she was reappointed as a TE.

Up to this point, appellant had worked at the Kino Station in Tucson.

In August 1994, appellant was reassigned to the Sun Station.

In the fall of 1994, the agency negotiated a new collective bargaining

agreement which provided for the curtailment of TE and casual

appointments (as opposed to career positions) by November 18, 1994.

Each station was allowed to retain a certain number of TEs. The managers

at the various stations were asked to rank their TEs on the bases of

performance, ability, attitude, attendance and ability to get along with

others, in order to determine which TEs would be retained. Only the top

four at Sun Station, where appellant worked, were allowed to be retained.

The evidence does not establish where appellant was ranked, but managers

testified that she did not make the top four. As a result, appellant's

TE appointment was terminated effective November 18, 1994.The four TEs

retained were a 22-year-old Hispanic male; a 26-year-old Hispanic female;

a 44-year-old non-Hispanic male; and a 23-year-old Hispanic male.

Although appellant's TE appointment was terminated, she was retained as a

casual employee at the same rate of pay as she had been receiving as a TE.

However, on December 31, 1994, that appointment was also terminated. Two

other casuals (40-year-old Hispanic female; and 30-year-old non-Hispanic

male), who had also previously been TEs, were reappointed as casuals for

two 89-day terms at their former TE rate of pay. Their last day in pay

status was June 29, 1995.

On February 21, 1995, appellant filed a formal EEO complaint with

the agency, alleging that the agency had discriminated against her

as referenced above. The agency accepted the complaint and conducted

an investigation. At the conclusion of the investigation, appellant

requested an administrative hearing before an Equal Employment Opportunity

Commission (EEOC) administrative judge (AJ).

On October 8, 1997, following a hearing at which four witnesses testified,

the AJ issued a decision from the bench concluding appellant had proven,

by a preponderance of the evidence, that she had been discriminated

against on the bases of her national origin, sex and/or age when she

was terminated from her casual appointment on December 31, 1994. On the

other hand, the AJ found no discrimination on any of the bases alleged

when appellant's TE appointment was terminated and she was converted to a

casual employee on November 18, 1994.<1> The AJ dismissed appellant's

disability discrimination allegations with regard to both issues,

concluding appellant had not established that she was an individual with

a disability as defined by the Rehabilitation Act.

In reaching these conclusions, the AJ found that proffered legitimate

explanations for its decision to terminate appellant's TE appointment

in November 1994, which were fully supported by the evidence of record.

With regard to this issue, the AJ found that appellant failed to meet

her burden of proving the agency's proffered reasons for its actions

were a pretext masking discrimination. On the other hand, the AJ found

that the agency failed to offer any explanation for why the other two

similarly situated former TEs were retained for two casual appointments

while appellant was not. The AJ concluded that without an articulation of

a legitimate, nondiscriminatory reason for its actions, the inference of

discrimination raised by appellant's prima facie case remains unrebutted

and appellant was entitled to a finding of discrimination.

On December 29, 1997, the agency issued its final decision, rejecting that

portion of the AJ's recommended decision which found discrimination with

regard to appellant's December 1994 termination as a casual employee. It

is from this decision that appellant now appeals.

After a careful review of the record in its entirety, the Commission

finds that the AJ's recommended decision sets forth the relevant facts and

properly analyzes the appropriate regulations, policies and laws. Based

on the evidence of record, the Commission discerns no basis to disturb

the AJ's finding of national origin, sex and/or age discrimination.

The Commission notes that nothing proffered by agency in its final

decision or on appeal differs significantly from the arguments raised

before, and given full consideration by, the AJ. Accordingly, it is the

decision of the Equal Employment Opportunity Commission to REVERSE that

portion of the agency's final decision which rejected the AJ's finding

of discrimination. In order to remedy appellant for its discriminatory

actions, the agency shall comply with the following Order.

ORDER

The agency is ORDERED to take the following remedial action:

(A) Within forty-five (45) calendar days of the date this decision

becomes final, the agency shall provide appellant with a back pay award,

with interest, reflecting any salary and/or benefits she lost when she

was discriminatorily terminated from her casual appointment on December

31, 1994. The back pay award shall end on June 29, 1995, the date

other similarly situated casual employees were terminated. Appellant

shall be paid at her TE hourly rate ($12.54 per hour). The agency

shall determine the appropriate amount of back pay, interest and other

benefits due appellant, pursuant to 29 C.F.R. � 1614.501, no later than

sixty (60) calendar days after the date this decision becomes final.

The appellant 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 appellant for the undisputed amount within sixty (60)

calendar days of the date the agency determines the amount it believes

to be due. The appellant 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."

(B) The agency shall provide training to the officials responsible

for its actions in this matter in their responsibilities under all the

Federal equal employment opportunity statutes.

(C) The agency shall post at the Sun Station, Tucson, Arizona, 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.

(D) 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 appellant,

including evidence that the corrective action has been implemented.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. �1614.501 (e)(1)(iii)), he/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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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 an action in an appropriate

United States District Court. It is the position of the Commission

that you have the right to file a civil action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. You should be aware, however, that

courts in some jurisdictions have interpreted the Civil Rights Act of

1991 in a manner suggesting that a civil action must be filed WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision.

To ensure that your civil action is considered timely, you are advised to

file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive

this decision or to consult an attorney concerning the applicable time

period in the jurisdiction in which your action would be filed. In the

alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)

CALENDARS 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 (Z1092)

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:

May 3, 1999

_________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated _____________ which found that

a violation of Title VII of the Civil Rights Act of 1964 as amended,

42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act

(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq., has occurred at

this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The Sun Station, Tucson, Arizona, supports and will comply with such

Federal law and will not take action against individuals because they

have exercised their rights under law.

The Sun Station, Tucson, Arizona, has been found to have discriminated

against the individual affected by the Commission's finding on the bases

of her national origin, sex and/or age when she was terminated from

her casual appointment in December 1994. The Commission has ordered

that this individual be provided with an appropriate back pay award,

as well as directing training for the responsible management officials.

The Sun Station, Tucson, Arizona, will ensure that officials responsible

for personnel decisions and terms and conditions of employment will

abide by the requirements of all Federal equal employment opportunity

laws and will not retaliate against employees who file EEO complaints.

The Sun Station, Tucson, Arizona, will not in any manner restrain,

interfere, coerce, or retaliate against any individual who exercises his

or her right to oppose practices made unlawful by, or who participates

in proceedings pursuant to, Federal equal employment opportunity law.

____________________

Date Posted: _____________________

Posting Expires: _________________

1 Appellant does not dispute this part of the AJ's decision.