01980634
03-22-1999
Renee McKinney, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Renee McKinney, )
Appellant, )
)
)
v. ) Appeal No. 01980634
) Agency No. 1-I-551-1033-96
) Hearing No. 260-97-9041X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 25, 1997, appellant appealed a final agency decision dated
October 10, 1997, which concluded that she had not been discriminated
against in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. In her complaint, appellant
alleged discrimination based on race/color (African-American/Black), sex
(female), and in reprisal for prior EEO activity when on March 21, 1996,
she was terminated from her position as a Transitional Employee (TE)
at the St. Paul, Minnesota General Mail Facility effective March 20,
1996, for failure to maintain a regular work schedule.
Appellant began her employment at the agency as a Casual employee on
April 13, 1991. On October 1, 1993, appellant was terminated for failure
to complete training. Appellant previously filed an EEO Complaint
with regard to that termination which resulted in findings of race and
sex discrimination. The agency subsequently supported those findings
and appellant was reinstated on June 9, 1995, and awarded full relief,
including damages. One of the discriminating officials for the incident
was the Manager of Distribution Operations.
Appellant was reinstated to the same work place as she was in before the
filing of the prior complaint. After the reinstatement, appellant was
subjected to an unfriendly work environment due to harassment/mistreatment
from her supervisors and coworkers. On her first day at work, appellant's
new supervisor made a comment that �so, you are [appellant's name].� As
a result of the tension at work, appellant suffered stress, and in June
1995, she was absent from work for a few days. In July 1995, appellant
unsuccessfully requested a transfer to a different work environment.
On August 20, 1995, appellant submitted a leave request, including her
FMLA request, due to her stress, and left work assuming that she was
getting FMLA leave. By September 15, 1995, appellant had not returned
and her supervisor sent a letter to her asking for documentation for
the absence. In late September 1995, after appellant returned to work,
her supervisor suggested that she may qualify for FMLA leave because
of her condition. Appellant, subsequently, submitted a FMLA leave form
for her August - September 1995 absence, and her supervisor granted FMLA
for the absence.
In February 1996, appellant had a car accident and she asked her
supervisor for FMLA, but she was told that she was not eligible.
In March 1996, appellant was suffering serious back discomfort due to
the car accident, and her supervisor knew about that. On March 17,
1996, appellant went to the medical unit and left work without notifying
her supervisor. On March 19, 1996, after appellant went to the medical
unit twice due to her back pain, she asked her supervisor if she could
go home. The supervisor, then, told appellant to fill out a 3971 leave
form and leave it on his desk which she did. In that form, appellant
also indicated that she was asking leave under FMLA due to her back pain
until further instructions from her doctor. Appellant heard nothing
from the agency until she received the termination letter dated March 21,
1996, for failure to maintain a regular work schedule from June 29, 1995
to March 17, 1996. This termination letter was issued by appellant's
supervisor, and was concurred by the Manager of Distribution Operations.
Prior to the termination, the supervisor had told appellant on several
occasions that he could not terminate her but if he could, she would
have been fired already. Appellant pointed out no similarly situated
employees who were treated differently than she was.
The record indicates that appellant, subsequently, filed a grievance
regarding the termination at issue, which was resolved through a
grievance settlement on July 22, 1996. Under the grievance settlement,
the termination notice was rescinded and appellant was reinstated as TE
without back pay, requiring her to report to work no later than July 27,
1996, but she refused to return to work. The record also indicates that
on August 26, 1996, appellant was issued a Notice of Removal effective
September 30, 1996, for unacceptable conduct, i.e., receiving welfare
benefits while employed by the agency, and absent without official leave
since July 26, 1996.
The record indicates that appellant filed a formal complaint dated May 8,
1996, alleging that she had been discriminated against when she received
the March 21, 1996 termination letter. The agency accepted the complaint
and conducted an investigation. At the conclusion of the investigation,
appellant requested a administrative hearing before an Equal Employment
Opportunity Commission (EEOC) administrative judge (AJ).
On September 9, 1997, following a hearing at which six witnesses
testified, the AJ issued a recommended decision concluding that
the evidence of record supported a finding that appellant had been
discriminated against in reprisal for prior EEO activity when she was
issued the March 21, 1996 notice of termination. The AJ pointed out
the facts that appellant was reinstated to the same environment in which
she worked when discrimination findings were made; when she asked for a
transfer to another location, nothing was done about it; and as a result,
her stress level increased and her attendance worsened. The AJ also
noted that appellant asked for FMLA leave on two occasions due to stress
and her back pain caused by her car accident, but they were not properly
attended by her supervisor instead, on one occasion, her leave request
was denied; then, she was terminated two months before her employment
as TE was to end. The AJ found that appellant's testimony was credible
with regard to the validity of her leave requests which were due to
her overall stressful condition and her car accident, rather than her
personal matters as the agency claimed. The AJ also found that although
appellant's supervisor testified at the hearing that appellant's March 17,
1996 leave without his approval prompted the termination and he was not
aware she had asked for FMLA leave on March 19, 1996, the supervisor's
assertions were not credible since he asked her to put a leave form on
his desk on March 19, 1996, which she did, and the termination notice
was, in fact, issued after that FMLA request. The AJ also found that
based on the testimony of appellant and her supervisor, the Manager
of Distribution Operations knew of appellant's prior EEO complaint,
as well as her reinstatement and he could have assisted appellant's
supervisor, who had not been around long, in handling the situation
better, beginning with transferring appellant and offering assistance
to deal with her absences. Based on the foregoing, the AJ concluded
that a preponderance of evidence showed the reasons articulated by the
agency to terminate appellant from her employment within the agency
were pretext to mask retaliation against appellant. The AJ, however,
did not find a discriminatory motive based on race, color or sex with
regard to the agency's decision to terminate appellant.
In a final decision dated October 10, 1997, the agency, accepting the
findings and conclusions of the AJ with regard to race, color and sex
discrimination, rejected the findings and conclusions of the AJ with
regard to retaliation, and entered a finding of no discrimination.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, including
the statements submitted on appeal, the Commission finds that the
AJ's recommended decision sets forth the relevant facts and properly
analyzes the appropriate regulations, policies and laws. After careful
consideration of the arguments of the parties, and based upon the evidence
of record, the Commission discerns no basis to disturb the AJ's finding
of discrimination. In reaching this decision, the Commission notes that
the credibility determination of the AJ are entitled to deference due
to the AJ's first-hand knowledge, through personal observation, of the
demeanor and conduct of the witnesses at the hearing. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990).
Accordingly, it is the decision of the Commission to REVERSE the agency's
final decision which rejected the AJ's finding of discrimination.
In order to remedy appellant for its discriminatory action, the agency
shall, comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) In accordance with the AJ's recommended decision, the agency
shall immediately give appellant back pay, with interest, as well as
any other benefits of employment for the time period of March 20, 1996,
the effective date of the termination at issue, to September 30, 1996,
the effective date of the August 26, 1996 Notice of Removal, minus any
amounts earned during that time period.
(2) The agency, in accordance with the AJ's recommended decision, shall
give appellant compensatory damages for emotional pain and injury and
the amount of the award for emotional injury is to be assessed based
on evidence submitted by appellant or requested by the agency.
(3) The agency shall pay appellant reasonable attorney's fees.
(4) In accordance with the AJ's recommended decision, training
shall be provided to all supervisors and managerial personnel, and all
Personnel Department staff at the agency's St. Paul, Minnesota facility.
The training shall detail the agency's obligations and duties imposed
by Title VII.
(5) The agency shall post at its St. Paul, Minnesota 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 referenced in the statement entitled
�Implementation of the Commission's Decision,� within ten (10) calendar
days of the expiration of the posting period.
(6) 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 foregoing corrective actions have 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. �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 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations