01A14001
01-06-2003
Anthony W. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony W. Jackson v. United States Postal Service
01A14001
January 6, 2003
.
Anthony W. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14001
Agency No. 1E-801-0008-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
REVERSES the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Casual Mailhandler at the agency's General Mail Facility, Colorado
Springs, Colorado. Complainant sought EEO counseling and subsequently
filed a formal complaint on April 10, 2000, alleging that he was
discriminated against on the basis of race (black) when on October 1,
1999, he became aware that he was released from his casual appointment
on June 12, 1999, due to poor performance and attendance problems,
whereas, he was told his release was due to lack of work for casuals.
Complainant insisted in his complaint, and in his statement to the EEO
Investigator, that he was a diligent worker, who was constantly praised
for his hard work. Complainant also contends that his attendance was
much better than a comparative white employee, who was absent for at
least 14 days due to illness in this employee's family and a motorcycle
accident. According to complainant, he was only absent six days and four
of them were purportedly scheduled absences. As relief of his complaint,
complainant asks for back pay from June 12, 1999 until January 18, 2000.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race discrimination. Moreover, the agency found
that complainant failed to submit any evidence to show that the reasons
it articulated for his termination were not credible or were a pretext to
mask prohibited discrimination. In reaching its finding, the agency noted
that complainant was removed due to attendance and performance issues.
Specifically, the agency noted that complainant had two unscheduled
absences which were considered absences without official leave (AWOL).
The agency also noted that several supervisors were displeased with
complainant's performance during his tenure.
On appeal, complainant contends that he was wrongfully terminated by
the agency. In this regard, complainant notes that the agency official
responsible for his termination was unable to produce attendance
and performance records to support the challenged personnel action.
Complainant also argued that at no time was he AWOL. He admits to missing
work a �few days� when he accidentally swallowed a nail and was under
the care of his doctor. He submitted copies of a medical certificate and
an X-ray, which he insisted he gave to the SDO upon his return to work.
The medical documents indicate that complainant was under medical care
from June 1 to June 9, 1999, for swallowing a nail. Complainant adds that
it was only through an accident that he discovered that he was terminated,
rather than released for lack of work. If in fact his termination was
due to performance problems, complainant states that the agency did
not comply with the standard operating procedures in terminating him.
In conclusion, complainant stated that he is not interested in working
for the agency any longer, but he is entitled to back pay for the alleged
discriminatory action. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), we find that contrary to the agency's conclusion,
complainant did establish a prima facie case of race discrimination
because he was removed from his Casual Mailhandler position while a cited
white comparative, who engaged in the same conduct, was not removed from
his assignment. See Furnco Construction Co. v. Waters, 438 U.S. 567
(1987) (it is sufficient to establish a prima facie case by showing that
similarly situated employees were treated more favorably than complainant)
see also; O'Connor v. Consolidated Coin Caterers Group, 517 U.S. 369
(1996) (it is not necessary for the complainant to rely strictly on
comparative evidence in order to establish an inference of discriminatory
motivation necessary to support a prima facie case); see also Gower v.
United States Postal Service, EEOC Appeal No. 05950089 (February 1,
1996) (Commission held that complainant could establish a prima facie
case by pointing to some evidence that, if unrebutted, would permit an
inference of discrimination).
We also find, that the agency's reasons are a pretext for discriminatory
animus toward complainant. As is established in judicial decisions, to
prevail in a disparate treatment case such as this one, complainant must
show by a preponderance of the evidence that the agency's explanation
for the challenged action is a pretext for discrimination. See Reeves
v. Sanderson Plumbing Products Inc., 530 U.S. 133 (2000); see also Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 156 (1981).
Complainant succeeded in showing pretext by establishing that although
the SDO purportedly terminated him because of his irregular attendance
and performance problems, he did not discuss these problems with him
prior to his termination. According to the SDO, he did not discuss
these matters with complainant because he only had a week to make his
decision to release one of the casual employees who worked for him.
We find that a week provided the SDO ample time to discuss these issues
with complainant. In reaching our conclusion that the reasons articulated
by the agency are pretext for discrimination, we also note that on May
7, 1999, the SDO signed a �Veterans Direct Hire� form for complainant
in which he stated that complainant had a �good attitude, [was a] great
performer, team player and works safely.� Exhibit (Ex) 6<1> This is
not the type of evaluation that a dissatisfied supervisor would give
to an underperforming employee. Even if we were to accept the SDO's
explanation that complainant was a good worker when he worked directly
under his supervision, but not when he worked for other supervisors,
we find that there is documentary evidence on record that contravenes
this testimony. Specifically, we take cognizance of the statement of the
Customer Service Supervisor who recommended that complainant be rehired
and who stated that complainant was a good worker while he worked at
the General Mail Facility. (Ex. 8).
Additionally, the Commission finds that the agency's failure or inability
to produce any documents to support its finding that complainant had
performance and attendance problems further undermines the reason it
articulated for the challenged personnel action. Likewise, there was no
evidence produced to support the SDO's testimony that the comparative
employee was distinguishable from complainant because he requested
permission to be on leave. The SDO's testimony suggest a contrary
conclusion in that he noted that he received a call from the comparative
employee between May 11th or 12th requesting leave because his mother
was ill. The fact that the SDO ultimately granted permission to the
comparative to use leave does not change the fact that the requested
leave was not scheduled before hand. It appears that both complainant
and the comparative were absent when they were initially scheduled or
expected to be at work. Moreover, the SDO never addressed complainant's
charge that the Comparative employee was absent on one other occasion
due to the result of a motorcycle accident.
Further, the Commision notes that it is apparent that the agency reached
a legal conclusion of no race discrimination in this case and then
attempted to obtain testimonial and documentary evidence to support such
a conclusion. In this respect, the Commission notes that the agency's
adjudication office remanded this case for a supplemental investigation
after the case was fully investigated and submitted for issuance of
a FAD. The supplemental investigation attempted to bolster the agency's
finding of no discrimination, but even with this additional effort there
remained inconsistencies and contradictions in the case that undermined
the credibility of the agency's witnesses. As such, the Commission notes
that it was during the supplemental investigation that AWOL charges were
first mentioned as a reason for complainant's termination. As previously
mentioned, this charge is questionable given that the SDO admits that
he never discussed this matter with the complainant prior to initiating
the removal action and there is no documentary evidence supporting that
complainant was ever charged AWOL. Complainant insists in his appeal
that such a charge was never brought to his attention. Also, it was
during the supplemental investigation, that the Manager of Distribution
Operations averred that he ordered the SDO to terminate complainant's
casual appointment and replace him because of complainant's absences.
This statement, although intended to buttress the agency's finding of
no discrimination, undermines the statement of the SDO who had stated in
his first affidavit that he released complainant because there was going
to be a reduction in employees, and he was given a week to release one
of his two casual employees. When responding to the Investigator as to
why he did not speak to complainant about his performance and attendance
problems, the SDO indicated that he did not do so because he �only had one
week to make a decision on whom to keep.� Clearly, if the MDO had ordered
the SDO to terminate complainant, there was no decision to be made. It is
apparent that either the MDO or the SDO is not credible in this matter.
Due to the contradictory evidence, we find that the reasons articulated
by the agency for its action, does not withstand scrutiny as a fair,
neutral and objective employment decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we find that the agency
discriminated against complainant because of his race. We REVERSE
the agency's final decision and remand this case to the agency to take
remedial actions in accordance with this decision and Order below.
ORDER (D0900)
The agency is ORDERED to take the following remedial action:
1. The agency shall award complainant back pay with interest and other
benefits due complainant, for the term of the Casual Mailhandler position.
In calculating complainant's back pay award, the agency should use August
4, 1999, the date that complainant's most recent casual appointment was
intended to expire as the reference date, and presume that he received
at least another reappointment as a Casual with an ending date of
November 2, 1999, as the period that complainant was entitled to a
back pay award. We make the presumption that complainant would have
received a reappointment as a Casual employee because upon review of the
record, it is established that the comparative employee received such
a reappointment prior to resigning on September 26, 1999. Ex. 2 p. 5.
2. 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 strongly consider taking disciplinary action against
the responsible management official(s) found to have discriminated against
complainant. The agency shall report its decision. If the agency decides
to take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline. Additionally, the
agency shall take corrective, curative and preventive action to ensure
that race discrimination does not recur, including but not limited to
providing training to the responsible official(s) at the United States
Post Office, General Mail Facility, Colorado Springs, Colorado, in the
law against employment discrimination. Within thirty (30) calendar days
of the date the training is completed, the agency shall submit to the
Compliance Officer appropriate documentation evidencing completion of
such training.
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 back pay 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 General Mail Facility, Colorado
Springs, Colorado, 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.
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.
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.
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
January 6, 2003
__________________
Date
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 (Title VII),
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 the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Postal Service, General Mail Facility, Colorado Springs,
Colorado, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The United States Postal Service, General Mail Facility, Colorado Springs,
Colorado, has remedied the employee affected by the Commission's finding
of race discrimination in the termination of Casual appointment
by ordering training and by paying back pay and restoring any
benefits or privileges complainant may have lost as a result of the
discrimination. The United States Postal Service, General Mail Facility,
Colorado Springs, Colorado, 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.
The United States Postal Service, General Mail Facility, Colorado
Springs, Colorado, 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
1 All citations in this decision refer to the exhibits listed in the
report of investigation.