01A11998
02-26-2003
Robert S. Snow, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert S. Snow v. United States Postal Service
01A11998
February 26, 2003
.
Robert S. Snow,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11998
Agency No. 4U-1509-92
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), national origin (African American), sex (male),
reprisal (prior EEO activity), and physical disability (foot injury),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. Complainant alleges that he was discriminated
against when he was removed from his position. Pursuant to 29 C.F.R. �
1614.405, the Commission accepts the agency's appeal in the above-entitled
matter.
BACKGROND
This is the third time this matter has been before the Commission.
The first appeal was taken by complainant when his complaint was
dismissed as moot after he prevailed in a grievance arbitration proceeding
challenging his removal for having allegedly altered medical documents.
We found that the complaint was not moot and ordered the case remanded
for an investigation and further processing. See Snow v. United States
Postal Service, EEOC Appeal No. 01932256 (February 3, 1994).
Following an investigation, the agency issued a second FAD (FAD 2),
finding no discrimination on the alternative grounds, first, that
complainant had failed to establish a prima facie case of disparate
treatment discrimination because he had identified no similarly situated
person outside his protected groups who was treated more favorably by the
agency than he had been. FAD 2 also found that the agency articulated
a legitimate, non-discriminatory reason for complainant's removal,
i.e. that he had altered medical documents, which complainant had been
unable to show to be a pretext for discrimination. Complainant again
appealed to the Commission. We held that, having failed to prove that
complainant had altered medical documents in the arbitration proceeding,
the agency was precluded by the doctrine of collateral estoppel from
relitigating the issue in the EEO proceeding. We were unable to address
the merits of the discrimination claim because the agency had failed to
conduct an investigation to determine whether there were any similarly
situated persons outside complainant's protected groups who had been
disciplined less severely than complainant. Accordingly, we vacated FAD
2 and remanded the matter for a supplemental investigation on that point.
See Snow v. United States Postal Service, EEOC Appeal No.01971320 (July
21, 2000).
After a supplemental investigation, the agency issued a third FAD (FAD
3) in which it found that complainant had failed to establish a prima
facie case of discrimination on any basis. In addition, in complete
disregard of the Commission's holding regarding collateral estoppel,
the agency found that complainant had properly been removed because he
had altered medical documents. Without citation of authority, the agency
states that the Commission decision on this point was not based on �sound
reasoning.� The agency reaches this conclusion by the following analysis:
Employees in many federal agencies, including the Postal Service, have
recourse to more than one appeal process. And in each of those appeal
processes different levels of proof are required to sustain a finding.
A decision by one forum most certainly does not transcend [sic] to the
same decision in another forum.
From FAD 3 complainant brings the instant appeal.
ANALYSIS AND FINDINGS
Under the analytical framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and its progeny, Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981) and St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993), an agency will prevail against an
employee's claim of illegal employment discrimination if 1) the employee
fails to prove the elements necessary to make out a prima facie case
of discrimination or 2) the agency is able to articulate a legitimate
non-discriminatory reason for its actions which the employee is unable
to prove to be a pretext for discrimination.
Prima facie Case
The investigation disclosed that on one occasion, the supervisor who
issued the notice of removal to complainant was involved in disciplining
a female employee who had falsified medical information on an agency form.
That employee was not removed. Thus, the record shows that an individual
similarly situated to complainant received less severe discipline from
the agency than did complainant for a comparable offense. This is enough
to raise an inference of discrimination. We find that, at least with
respect to sex-based discrimination, complainant has established a prima
facie case.
Legitimate, Non-Discriminatory Reason
As is discussed above, we have previously held that the doctrine of
collateral estoppel forecloses the agency from justifying its removal of
complainant on the ground that he altered medical documents, a conclusion
with which the agency disagrees. Under the Commission's regulations,
when an agency believes a Commission decision in a federal sector appeal
is in error, it may request reconsideration of the decision. See 29
C.F.R. � 1614.405(b). If it fails to do so within the allotted time,
the Commission's becomes final and is binding on the agency. Here,
the agency failed to request reconsideration.
Even if the matter were open for further discussion, the agency has
proved no argument that might persuade us to change our collateral
estoppel ruling. In the previous decision, we cited the relevant
Supreme Court and Commission precedents and set out the criteria to
be considered when the doctrine of collateral estoppel is invoked.
The agency addresses none of these.
There is a suggestion in FAD 3 that collateral estoppel should not apply
here because a federal agency is a party to the dispute. We are aware of
no authority for such a contention nor has the agency cited any. Indeed,
in a case to which the agency was a party, Kroeger v. United States
Postal Service, 865 F.2d 235 (Fed. Cir. 1988), the agency successfully
invoked collateral estoppel to bar relitigation before the Merit Systems
Protection Board (MSPB) of a factual issue resolved in its favor in a
grievance arbitration. The agency having taken advantage of the doctrine
before the MSPB, its argument that collateral estoppel may not be invoked
before the Commission is unpersuasive. We reject the agency's view that a
federal agency is free to relitigate, without limitation, a factual issue
that has been resolved against it in a forum of competent jurisdiction.
The only justification the agency has offered for its removal of
complainant was that he altered medical documents. We have concluded
that the agency is barred from making that contention. The result is
that the agency has failed to rebut complainant's prima facie case.
An unrebutted prima facie case is sufficient basis for a finding of
discrimination. See Young v. Department of the Treasury, EEOC Request
05940517 (October 13, 1995). Accordingly, we find that complainant has
proven his case of sex-based discrimination.<1>
CONCLUSION
For the foregoing reasons, the agency's final decision is REVERSED,
and the complaint is REMANDED for further processing in accordance with
the order below.
The agency is ORDERED to take the following remedial action:
(1) The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant 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 complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
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."
(3) The agency shall conduct a supplemental investigation on the issue of
complainant's entitlement to compensatory damages and shall afford him an
opportunity to establish a causal relationship between the discriminatory
removal and any pecuniary or non-pecuniary losses. The complainant shall
cooperate in the agency's efforts to compute the amount of compensatory
damages, and shall provide all relevant information requested by
the agency. The agency shall issue a final decision on the issue of
compensatory damages. 29 C.F.R.� 1614.110. The supplemental investigation
and issuance of the final decision shall be completed within one hundred
and twenty (120) calendar days of the date this decision becomes final. A
copy of the final decision must be submitted to the Compliance Officer,
as referenced herein.
(4) The agency shall pay complainant's reasonable attorney's fees and
costs in accordance with the Attorney's Fees order herein.
(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 of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ORDERED to post at its Denver, Colorado Bulk Mail Center
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 (K0501)
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 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.
ATTORNEY'S FEES (H0900)
If complainant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 26, 2003
__________________
Date
1 We do not address complainant's Title VII
claims on bases other than sex, nor his claims under the Rehabilitation
Act because any additional finding of discrimination on any of those
claims would afford him no greater rights to relief than he has already
been awarded by this decision.