01A22058
03-06-2003
Barbara J. Blackmon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara J. Blackmon v. United States Postal Service
01A22058
March 6, 2003
.
Barbara J. Blackmon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22058
Agency No. 4J604002200
Hearing No. 210-A1-6174x
DECISION
Barbara J. Blackmon (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her 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 remands the complaint for a supplemental investigation.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk at the agency's Hinsdale, Illinois facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 4, 2000, which was amended to include additional
allegations on May 26, 2000. Therein, complainant alleged that she was
discriminated against on the bases of race (African-American) and sex
(female), and subjected to retaliation for prior EEO activity (under
Title VII) when:
(1) on October 5, 1999 and April 4, 2000, she was denied official time
as an EEO representative;
on October 21, 2000, she was denied Leave Without Pay (LWOP) for ADR
training;
on October 25, 1999, she was charged Absent Without Leave (AWOL) and
issued a 7-day suspension;
on November 4, 1999, her request for leave to participate in a Church
function was denied; and
on May 5, 2000, she was issued a 7-day suspension
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge (AJ)
or alternatively, to receive a final decision by the agency. Although
complainant requested a hearing, she failed to appear for a scheduled
settlement conference, as well as failing to respond to two Show Cause
Notices issued by the AJ. The AJ therefore returned the complaint to
the agency for a final agency decision.
In its FAD, the agency concluded that complainant that failed to establish
a prima facie case on any basis. The agency further concluded that
even assuming complainant established a prima facie case, she failed
to prove by a preponderance of the evidence that her race, sex or prior
EEO activity, rather than management officials' legitimate explanations,
motivated the actions at issue.
On appeal, complainant reiterates contentions made in her affidavit and
the agency requests that we affirm its FAD.<1>
After a careful review of the record, we find that we are unable to render
a decision on this complaint due to the inadequacy of the investigative
report. The agency is required to develop an impartial and appropriate
factual record upon which to make findings on the claims raised by the
written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual
record is one that allows a reasonable fact finder to draw conclusions as
to whether discrimination occurred. Id. In the case at hand, although
complainant did not specify in her complaint or affidavit that Issue
4 involved the denial of a religious accommodation, throughout the
processing of her complaint she alleged that she was denied leave to
attend a church function. Moreover, the record establishes that she
indicated on the relevant leave request slip that her request was for
religious reasons. In these circumstances, we find that complainant's
failure to label her claim as a denial of religious accommodation should
not have prevented the agency from recognizing Issue 4 as a denial of
religious accommodation claim and conducting an appropriate investigation
on the issue.
Under Title VII, employers are required to accommodate the religious
practices of their employees unless a requested accommodation is shown to
impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1)
(citing Trans World Airlines, Inc v. Hardison, 432 U.S. 63, 74 (1977));
see also McKinney v. Department of the Navy, EEOC Appeal No. 07A10112
(June 27, 2002). Because the agency did not investigate Issue 4 as a
denial of a religious accommodation, we are unable to determine whether,
in denying complainant's request for LWOP, the agency denied complainant a
religious accommodation and/or showed that granting her request would have
imposed an undue hardship. We therefore are unable to draw conclusions
as to whether discrimination occurred.
Accordingly, we find that this complaint must be remanded for
a supplementary investigation. In order to avoid bifurcation of
complainant's complaint, we will not render a decision on the remaining
issues until the supplementary investigation has been completed.
The agency is directed to comply with the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
1. The agency shall ensure that the investigator recognizes that Issue 4
is claim of denial of religious accommodation and obtains supplementary
affidavits from MSC, S1 and S1A on this issue. These agency officials
shall provide detailed explanations as to why complainant was denied
her request for leave to attend a church function.
2. The agency shall ensure that the investigator obtain a supplementary
affidavit from complainant regarding her request for leave to attend a
church function on November 4, 1999. Complainant shall provide testimony
as to whether this request was motivated by a bona fide religious belief,
the practice of which conflicted with her employment, as well as whether
she informed the agency of this belief and conflict, but nevertheless
was denied an accommodation.
3. The agency shall ensure that the investigator obtains any documentary
evidence supporting the supervisors' reasons for failing to grant
complainant's request for leave to attend a church function on November
4, 1999.
4. The agency shall ensure that the investigator obtains any other
affidavits or records not specifically requested in this ORDER, and not
inconsistent with this opinion, which may be relevant in determining
whether complainant was denied a religious accommodation when she was
not granted leave to attend a church function on November 4, 1999.
5. The agency shall acknowledge that it has received the remanded
complaint within fifteen (15) calendar days of the date this decision
becomes final.
6. The agency shall ensure that the investigator completes a supplemental
investigation within ninety (90) calendar days of the date this decision
becomes final. The agency shall then immediately issue to complainant a
copy of the supplemented investigative file. Thereafter, the agency shall
issue a new final agency decision within sixty (60) days. Copies of the
completed supplemental investigation and new final agency decision must
be submitted to the Compliance Officer, as referenced below.
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 (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
March 6, 2003
Date
1 On appeal, complainant did not make any
claim of error related to the AJ's decision to return her complaint to the
agency for a final decision and we will therefore not address this issue.