EEOC Appeal No. 0120162461
01-26-2018
Darius C. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darius C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120162461
Agency No. 1G-772-0008-16
DECISION
On July 22, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 11, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency's final decision finding no discrimination was based on an adequate investigative record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) Mail Automation Clerk at the Agency's North Houston, Texas Processing and Distribution Center (P&DC) facility. According to the investigative record, PSEs are non-career bargaining unit employees. The investigative record contains excerpts from a collective bargaining agreement (CBA). According to the CBA, "When the Postal Service determines in accordance with contractual positions that it has needs to fill vacancies with new career employees, available and qualified PSE employees will be converted to fill such vacancies on a seniority basis." The record does not contain an explanation of how seniority is calculated for PSE employees.
On February 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and age (52) when his position on the seniority roster was changed three times and, in December 2015, he was not converted to a career position.
Complainant alleged that in December 2015 he was not converted from a PSE position to a career position. Complainant averred that, based on seniority, he should have been converted to a career position. According to Complainant, the Houston District Complement Coordinator (S1) changed his position on the seniority roster at least three times. Complainant stated that on March 9, 2013, he was number 8 on the seniority roster, that on November 20, 2014, he was number 23 on the seniority roster, and that on June 13, 2015, his position on the roster was changed again to an unknown position.
During the EEO investigation, S1 stated that he no longer had access to the seniority roster records or records relating to the conversion of PSE employees to career employees. S1 averred that he had no memory of changing Complainant's position on the seniority roster or what craft Complainant belonged to. The EEO Investigator also interviewed a North Houston P&DC Supervisor, Distribution Operations (S2), but S2 stated that she was not involved in the keeping of the seniority roster or in the conversion of PSE employees to career positions.
The record contains five emails from the EEO Investigator to two Agency officials requesting several documents, including a copy of the PSE seniority roster, names of PSE Mail Processing Clerks converted to career employees in December 2015, and a copy of the Memoranda of Understanding (MOU) regarding conversion to career positions for PSE Mail Processing Clerks. The EEO Investigator also stated, "If the requested information regarding PSE conversions or the seniority roster is no longer available please provide a statement stating so." One Agency official did not respond to the EEO Investigator's emails. The second Agency official responded to the EEO Investigator on three occasions that she would have someone look into the matter, but the record does not contain the requested documents or a statement that the requested documents are no longer available.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The final decision found that Complainant failed to establish a prima facie case of discrimination. Assuming that Complainant established a prima facie case of discrimination, the Agency found that management provided a legitimate, nondiscriminatory reason for its actions. The final decision noted that Complainant's PS Form 50 in the investigative record showed an enter-on-duty date of May 17, 2015, and concluded that the "document then infers that there was a break in service from the first time the complainant was first hired." The final decision then found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory explanation was pretextual. The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant makes no contentions on appeal.
In response to Complainant's appeal, the Agency requests that its final decision be affirmed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
EEOC Regulation 29 C.F.R. � 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-110, at Chap. 6, � IV.B. An investigation must include "a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant's group as compared with the treatment of similarly situated employees . . . and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant." Id. at � IV.C. Also, an investigator must identify and obtain "all relevant evidence from all sources regardless of how it may affect the outcome." Id. at � VI.D.
EEOC Regulations provide that the Agency and any employee of a federal agency shall produce such evidence as the investigator deems necessary. 29 C.F.R. 1614.108(c)(1). The regulations further provide that when the Agency against which a complaint is filed, or its employees fail without good cause shown to respond fully and in timely fashion to requests for affidavits, the investigator may note in the investigative record that the decisionmaker should, or the Commission on appeal, may in appropriate circumstances: (i) draw an adverse inference that the requested information, or the testimony of the requested witness would have reflected unfavorably on the party refusing to provide the requested information; (ii) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) exclude other evidence offered by the party failing to produce the requested information or witness; (iv) issue a decision fully or partially in favor of the opposing party; or (v) take such other actions as it deems appropriate. 29 C.F.R. � 1614.108(c)(3).
Upon review, the Commission finds that the investigation was inadequate and that the record lacks the thoroughness required for the fact finder to address the ultimate question of whether discrimination occurred. The EEO Investigator made multiple requests for a copy of the seniority roster, a list of PSE employees converted to career positions in December 2015, and a copy of the MOU concerning the process for converting PSE Mail Processing Clerks to career positions, but the Agency failed to provide the requested documents. There is also no information in the record regarding the calculation of seniority for PSE employees, and the record does not contain evidence regarding how other PSE employees were treated with respect to their conversions to career positions. Furthermore, there is no specific testimony from the decisionmakers in this matter that address the specific allegations raised by Complainant. Therefore, the investigative record is not adequately developed to evaluate Complainant's EEO complaint. Accordingly, based on the foregoing, we remand this matter for a supplemental investigation consistent with this decision and the Order below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND the matter for a supplemental investigation in accordance with this decision and the ORDER below.
ORDER
Within sixty (60) days of the date this decision is issued, the Agency shall conduct and complete a supplemental investigation and issue a new decision with the appropriate appeal rights, unless this matter is otherwise resolved before issuance of a decision. The supplemental investigation shall include, but is not limited to, the following:
1. Copies of the North Houston P&DC PSE seniority rosters from March 29, 2013, to December 31, 2015.
2. A list of all North Houston P&DC PSE employees converted to career positions in December 2015, including position titles, grade levels, race, color, sex, and age.
3. Information about the relevant process for converting PSE Mail Processing Clerks to career positions in December 2015.
4. Information about the relevant process or processes for calculating seniority for PSE Mail Processing Clerks between March 29, 2013 and December 31, 2015.
5. If any of the requested documents are not available, the Agency shall provide an explanation of that unavailability.
6. Affidavits or other declarations from Agency personnel who are able to provide relevant information regarding Complainant's specific allegations that his position was changed on the seniority roster and that he was not converted to a career position.
7. Affidavits or other declarations from Agency personnel who are able to provide relevant information about the treatment of North Houston P&DC PSE Mail Processing Clerks who were converted to career positions in or around December 2015.
8. Opportunity afforded to Complainant to submit a rebuttal affidavit.
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 corrective action has been implemented. A copy of the supplemental report of investigation shall also be submitted to the Compliance Officer referenced below.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
01/26/18
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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