01970900
03-19-1999
Paula Baxter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Areas), Agency.
Paula Baxter v. United States Postal Service
01970900
March 19, 1999
Paula Baxter, )
Appellant, )
)
v. ) Appeal No. 01970900
) Agency No. 4F-907-1189-94
William J. Henderson, ) EEOC No. 340-95-3506X
Postmaster General, )
United States Postal Service )
(Pacific/Western Areas), )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e, et seq., and �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The
Commission accepts this appeal in accordance with EEOC order No. 960.001.
Appellant filed a formal complaint alleging discrimination on the basis
of race (African American), sex (female), and physical disability
(cervical thoratic strain)<1>. The agency accepted the following
issue for investigation: whether she was discriminated against on the
aforementioned bases when she was subjected to continued harassment;
only person with set breaks and lunch times; given stamp stock with an
overage of $1,700; denied therapy. Following the agency's investigation,
appellant requested a hearing before an EEOC administrative judge (AJ).
On August 12, 1996, the AJ issued a Recommended Decision (RD) without a
hearing pursuant to 29 C.F.R. �1614.109(e), finding no discrimination.
In his RD, the AJ defined the issues as follows: whether appellant was
treated disparately on the bases of her race, gender, or disability by
being the only clerk assigned set breaks and lunch schedules, receiving
a stock overage of $1,700, denied overtime, and not allowed to attend
a therapy session, or retaliated against by being issued a letter of
warning.
With respect to appellant's allegation that she was the only individual
assigned set breaks and lunch schedules, the AJ found that a controversy
existed in the record as to whether in fact appellant was the only
individual assigned to such a schedule, as she alleged. The AJ noted
that although one of the Acting Station Managers (ASM1)(Caucasian male)
acquiesced that appellant was the only employee set to such a schedule,
another Acting Station Manager (ASM2)(race unknown, male) stated that all
the other Clerks are assigned set schedules. The AJ found that even if
appellant was the only employee assigned set break schedules, that the
agency had articulated legitimate, nondiscriminatory reasons for such.
Specifically, ASM1 testified that appellant was given set breaks and
lunch times for the needs of the service; so that she would be available
to relieve window clerks for their breaks and lunch. Also, ASM1 testified
that when appellant serves as a replacement worker doing accountables, she
can vary her break and lunch times. Th AJ found that appellant had failed
to show that ASM2's documentation which purported to show that all clerks
have set breaks and lunches, was false or a pretext for discrimination.
We note that neither ASM2's affidavit, nor the supporting documentation
referenced by the AJ are contained in the record.
Appellant alleged in her second allegation that she was given a stock
stamp overage of $1,700 by ASM1 in an effort to "set her up". The AJ found
that appellant had failed to show that she was treated differently than
any other individuals in that she failed to present any comparisons with
respect to this allegation. Furthermore, the AJ noted the testimony of
ASM1 who stated that he did not recall the incident, and had not heard
about the incident prior to the instant complaint.
With respect to appellant's allegation that she was provided less overtime
than a Caucasian transitional clerk, the AJ found that appellant was not
assigned overtime because of her medical restrictions set by her physician
due to an on the job injury. The AJ noted that the evidence supported
this reason because the evidence proved that prior to her injury, which
occurred in early January 1994, appellant averaged more overtime than
any other clerk. Furthermore, the AJ found that from the second through
the thirteenth pay period of 1994, appellant used COP leave, sick leave,
and annual leave consistently such that she was not available for eight
hours or more on a daily basis.
The AJ also discussed appellant's disability claim with respect to the
overtime allegation. He found that appellant had failed to establish
a prima facie case in that she failed to show that her condition, a
cervical thoratic sprain, was a permanent condition. Although appellant
had received limited duty assignments from the date of the injury on
January 13, 1994, through April, May, June and September, the AJ found
that appellant's Orthopedist had found appellant was capable of performing
her normal work duties in November 1994, and thus, was not permanently
disabled. Assuming arguendo, that appellant was disabled, the AJ found
that the denial of overtime was consistent with the restriction placed
on appellant which included a ban on working more than eight hours per
day. Furthermore, the AJ found that the agency had made reasonable
accommodation to appellant by providing her with a limited duty
assignment.
Finally, with respect to appellant's allegation that she received a Letter
of Warning on October 13, 1994, in reprisal for prior EEO activity,
the AJ found that appellant had failed to establish a prima facie
case of discrimination in that she failed to establish the requisite
causal connection between the EEO activity and the Letter of Warning.
Furthermore, the AJ found that appellant failed to prove that the
individual who issued the Letter of Warning for tardiness, was aware of
appellant's prior EEO activity when he issued her the Letter of Warning.
October 16, 1996, the agency issued a final decision adopting the AJ's
recommended decision. It is from this decision that appellant now
appeals.
After a careful review of the record, we find are unable to discern from
the record whether appellant has failed to meet her burden of proving
discrimination, or whether the record is simply incomplete. As the
record contains sufficient gaps on material issues, we find appellant
should be afforded the opportunity to have her case heard before an AJ at
a hearing. Documentation missing from the record include the affidavit
of ASM2 and accompanying documentation, as well as the agency's motion
for a recommended decision on the record, the AJ's notice to appellant
to respond, and appellant's response to the notice by the AJ, with
accompanying documentation. Among other things, appellant represents
on appeal that she presented to the AJ with her Motion, evidence that
as of January 31, 1995, her physician declared that her disability
was permanent.
The confusion with respect to the Motion seems to surround appellant's
representative's contention that he told the agency that he would be out
of town for the month of July and part of August, 1994, and represented
that the agency agreed it would inform the AJ if need be. However,
according to appellant's representative, the AJ was not informed,
and appellant responded to the Motion pro se. Appellant argues that
this prejudiced her by denying her a hearing at which she planned to
present testimony of witnesses who were not interviewed during the
investigation.
Appellant also argues on appeal as to the material issues which remain
in dispute. Specifically, appellant correctly notes that the agency
failed to conduct an investigation as to the nature of the overtime
assignments, rather, simply stated she was not qualified because she
was on limited duty. Thus, we are unable to determine from the record
if appellant was qualified for the overtime in question, and if so, why
she was not permitted to work such overtime assignments. Contrary to the
AJ's findings, we find insufficient evidence indicating that appellant
was restricted to eight hours of work per day. Furthermore, we find
that there existed questions regarding the agency's reasons for denying
appellant her physical therapy session. The agency simply maintained that
appellant told them her therapy sessions already had ended, and there
was an emergency which required her service. Appellant also argues on
appeal that the agency failed to show that allowing appellant to attend
the physical therapy session would be an undue burden on the agency.
The agency did not respond to appellant's contentions on appeal in any
material respect. Therefore, after a careful review of the record, it
is the decision of the Commission to VACATE the agency's final decision,
and REMAND appellant's complaint to the agency so that appellant may
receive an EEO hearing in her case.
ORDER
Within thirty (30) days of the date this decision becomes final,
appellant's case shall be forwarded to the appropriate EEOC district
office for the assignment of an EEOC administrative judge. The appellant
shall be notified, in writing, that her case has been reassigned to an
administrative judge and a copy of this written notice shall be sent to
the Compliance Officer cited below. Following the hearing and issuance of
the recommended decision in appellant's case, the agency shall continue
to process appellant's case in accordance with Commission regulations.
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 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:
March 19, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant added reprisal (prior EEO activity) as a basis of her
complaint during the investigation.