01972509
11-27-1998
Judy H. Cranfield, Appellant, v.) William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W.),) Agency.)
Judy H. Cranfield, )
Appellant, )
)
v.) Appeal No. 01972509
) Agency No. 4-H-310-1039-95
William J. Henderson, ) Hearing No. 110-96-8195X
Postmaster General, )
United States Postal Service, )
(S.E./S.W.),)
Agency.)
_______________________________________)
DECISION
On January 30, 1997, appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from a final agency
decision (FAD) concerning her equal employment opportunity complaint
(EEO) complaint, which alleged discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The
appeal is accepted in accordance with EEOC Order No. 960.001.
The issue is whether appellant has established, by a preponderance of
the evidence, that the agency discriminated against her on the basis
of reprisal (prior EEO activity) when, on September 20, 1994, the
agency sent appellant a letter notifying her that her appointment as a
transitional employee (TE) was terminated effective October 1, 1994.
The record reveals that appellant filed a formal EEO complaint with the
agency on December 27, 1994, alleging that the agency had discriminated
against her as referenced above. Following the agency's acceptance
of this complaint, the agency conducted an investigation. At the
conclusion of the investigation, appellant requested a hearing before
an Administrative Judge (AJ). On September 20, 1996 a hearing was held,
and on September 27, 1996, the AJ issued a recommended decision (RD)
pursuant to 29 C.F.R. �1614.109(e), finding discrimination based on
reprisal. The AJ found that the agency discriminated against appellant
on the basis of reprisal (Prior EEO activity). Specifically, the AJ held
that if appellant had not previously filed an EEO complaint against the
agency, appellant's appointment would have been renewed. In support of
this decision, inter alia, the AJ held that because of the RO's demeanor,
the AJ found his testimony unpersuasive and unconvincing.
On December 24, 1996, the agency rejected the RD's finding of reprisal
discrimination, and issued a FAD finding no discrimination. It Is from
this decision that appellant now appeals.
Appellant does not raise any contentions on appeal. However, the agency
contends that the Commission should affirm the agency's FAD finding
no discrimination.
The Commission finds that the agency discriminated against appellant on
the basis of reprisal (prior EEO Activity) when, on September 20, 1994,
the agency sent appellant a letter notifying her that her appointment
as a transitional employee was terminated effective October 1, 1994.
Specifically, appellant established a prima facie case of discrimination
on the basis of reprisal (Prior EEO activity) by showing that she was
meeting the expectations of her employer, and that her appointment was
not renewed while the appointments of other employees in her category
were renewed. The agency did articulate a legitimate non-discriminatory
reason for not re-hiring appellant through the testimony of the RO. The
RO testified that he was informed by the agency to lower his complement
of transitional employees, and appellant was the first transitional
employee having an appointment expire. Therefore, the RO chose not to
renew appellant's appointment. Nevertheless, appellant clearly proved the
agency's explanation to be pretextual. Specifically, appellant showed
that there was another employee with an appointment expiration date prior
to hers. Furthermore, three (3) other individuals were hired at or about
the same time of the agency's failure to renew appellant's appointment.
CONCLUSION
After a careful review of the entire record, and for the foregoing
reasons, the Commission finds that the AJ's RD adequately summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. We have reviewed the record and discern no basis to disturb
the AJ's findings of discrimination based on reprisal.
Accordingly, We VACATE the FAD's finding of no discrimination, and the
agency shall comply with the order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial actions:
(1) The agency shall reinstate appellant to her transitional employment
position as of the time her appointment should have been renewed in 1994;
(2) The agency shall take corrective, curative and preventative action
to ensure that reprisal discrimination does not recur, including, but not
limited to providing training to the responsible officials at the United
States Postal Service, Augusta Main Office Postal Facility, Augusta,
Georgia, in the law against employment discrimination. Within thirty
(30) calendar days of the date that the training is completed, the
agency shall submit to the Compliance Office appropriate documentation
evidencing completion of such training.
(3) The agency shall determine the appropriate amount of backpay (with
interest, if applicable) 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 backpay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of backpay 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."
(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 backpay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Augusta, Georgia facility 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 (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. �1614.604(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 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 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 (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:
Nov. 27, 1998
DATE
Ronnie
Blumenthal,
Director
Office of Federal Operations
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of that 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 United States Postal Service, Augusta, Georgia, Main Office, Postal
Facility (Augusta Postal Facility) supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Augusta Postal Facility has been found to have discriminated on
the basis of reprisal (Prior EEO Activity), when the agency notified
an employee that her appointment as a transitional employee (TE) was
terminated while the appointments of other employees in her category
were renewed. The Augusta Postal Facility has been ordered to take
corrective action in the form of training for the responsible officials,
and to award the appropriate amount of back pay (with interest, if
applicable), and other benefits due the employee discriminated against.
The Augusta Postal Facility 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
Augusta Postal Facility 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: _________________
29 C.F.R. Part 1614