0120082510
12-22-2010
Darrell K. Payne and Durrell M. Williams, Complainants, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darrell K. Payne and Durrell M. Williams,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 0120082497, 0120082510
Hearing Nos. 420-2007-00168X, 420-2007-00164X
Agency Nos. 4H-350-0009-07, 4H-350-0008-07
DECISION
Complainants each filed a timely appeal from separate final Agency
orders dated April 11 and 16, 2008, respectively, concerning their equal
employment opportunity (EEO) complaints 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. The Commission accepts the appeals and,
pursuant to 29 C.F.R. � 1614.606, consolidates them for a single decision
because they arise from the same factual occurrence.1 For the following
reasons, the Commission REVERSES the Agency's two final orders.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the EEOC
Administrative Judge's (AJ) conclusion that the Agency did not subject
Complainants to discrimination on the bases of race and sex.
BACKGROUND
During the period at issue, Complainants worked at the Agency's
Prichard Postal Station, Mobile, Alabama as Part Time Flexible (PTF)
City Carriers. Complainants' Appeal Brief at 2. Complainants were
hired on September 2, 2006, and began training by taking classes on
September 5, 2006. Id. Subsequently, Complainants were assigned to the
Agency's Prichard Station on September 19, 2006. Williams (Report of
Investigation) ROI at 74; Payne ROI at 12. Upon arriving to the Prichard
Station, Complainants trained for three days driving the postal vehicle
and delivering mail with the On-the-Job-Instructor (OJI). Complainants'
Appeal Brief at 2.
While at Prichard Station, on September 25, 2006, Complainants were
assigned to mail delivery route 1016, as well as other routes, by
their supervisor (S1). Payne Hr'g Tr., at 11; Complainants' Appeal
Brief at 2. Route 1016 contained unmarked streets and poorly marked
houses that were abandoned, damaged, and under construction due to the
damaged caused by Hurricane Katrina, which hit the Gulf Coast region
a year earlier. Williams Hr'g Tr., at 21, 22. There were some days that
Complainants had to work Route 1016 plus additional routes to fill in when
a coworker was absent from work. Williams Hr'g Tr., at 30-31. On October
2, 2006, Complainants were given their 30-day evaluations with S1 rating
them unsatisfactory for "work quantity" and "work quality." Complainants'
Appeal Brief at 2; Payne Hr'g Tr., at 231-232. On October 24, 2006, on the
same day, before completion of their probationary periods, S1 terminated
Complainants from the Agency. Payne Hr'g Tr., at 26; Williams Hr'g Tr.,
at 45. Complainants were terminated before their 60-day evaluations. Payne
Hr'g Tr., at 29. Under Agency policy, probationary employees were
generally evaluated at their 30, 60, and 90-day periods. Id.
On July 23, 2005, a PTF City Carrier (CW1) (female, Caucasian) was
hired by the Agency and began her employment at the Prichard Station.2
Payne ROI at 18. CW1 was subsequently transferred to the Agency's Town
West Station prior to her 60-day evaluation, where she finished the
remainder of her 90-day probationary period. Payne ROI at 97. Further,
a PTF City Carrier (CW2) (female, Caucasian) hired on February 4, 2006,
was transferred from the Prichard Station to the Agency's Loop Station
in April 2006 before her 60-day evaluation, where she also finished the
remainder of her 90-day probationary period. Williams Hr'g Tr., at 204,
243.
On February 7 and 9, 2007, Complainants filed EEO complaints alleging
that the Agency discriminated against them on the bases of race
(African-American) and sex (male) when they were both terminated from
employment on October 24, 2006, during their probationary periods.
At the conclusion of the Agency's investigations, the Agency provided
Complainants with copies of their ROIs and notice of their right to
request a hearing before an AJ. Complainants timely requested hearings;
the AJ held a joint hearing on March 18, 2008. During the March 18,
2008, hearing, S1 testified that Complainants were terminated for not
delivering mail while on their routes and leaving mail in hampers and in
mail cases. Williams Hr'g Tr., at 79; Payne Hr'g Tr., at 59, 82. Also,
S1 testified that, on one occasion, Complainant Williams was spotted
not wearing his seatbelt in the postal vehicle. Williams Hr'g Tr.,
at 82. S1 further testified that on one occasion Complainant Payne
left his postal vehicle with the engine running. Payne Hr'g Tr., at 62.
S1 also testified that Complainants were taking too much time on the
street delivering mail frequently going over the allotted time required
of them. Williams Hr'g Tr., at 84, 85, 105, 109, 110, 117; Payne Hr'g Tr.,
at 62, 82, 86. S1 further testified that Complainants failed to scan mail
to assure delivery confirmation and failed to follow directions. Williams
Hr'g Tr., at 108, 116; Payne Hr'g Tr., at 82.
On April 11, 2008, the AJ issued a separate decision for each
Complainant.3 Payne Hr'g Tr., at 213-236; Williams Hr'g Tr., at
233-256. Therein, the AJ found that Complainants were not discriminated
against on the bases of race and sex when they were terminated from their
probationary positions. Id. Specifically, the AJ found that Complainants
failed to establish a prima facie case of discrimination. Williams Hr'g
Tr., at 252. The AJ found that Complainants could not establish that
a similarly-situated individual outside of their protected classes was
treated more favorably. Id. at 251. Specifically, the AJ found that CW1
and CW2 were transferred and were evaluated by different supervisors and
thus were not substantially similarly-situated to Complainants. Payne Hr'g
Tr., at 230. Further, the AJ noted that several probationary employees of
the same protected class as Complainants had completed their probationary
periods under S1. Id. at 231.
The AJ then found, assuming Complainants established prima facie cases
of race and sex discrimination, that the Agency established legitimate
nondiscriminatory reasons for its actions; namely, that based on
the testimony of S1, Complainants were terminated due to their "work
quantity," "work quality," and failure to follow instructions. Id. at 232.
The AJ found that these nondiscriminatory reasons were not pretext for
discrimination. Id. In this regard, the AJ noted that even if the Agency
made a mistake here, it does not follow that the error was pretext for
discrimination. Id. The AJ reiterated the fact that many individuals of
the same race and sex as Complainants were retained by the Agency during
their probationary periods. Id. at 233. The AJ found that Complainants
presented no evidence that the Agency's actions were motivated by
discrimination. Id. at 233-234.
CONTENTIONS ON APPEAL
On appeal, Complainants contend that Caucasian employees received
preferential treatment in regard to mail delivery route assignments
and transfers to other stations. Complainants contend that, as a
result, African-American employees were being terminated during their
probationary periods, while Caucasian employees were allowed to finish
their probationary periods. Complainants also contend that CW1 was
similarly situated to them because they had the same supervisor, worked
at the same station, and were probationary employees. Complainants also
contend that they were assigned more difficult route assignments, which
made it difficult for them to perform their job requirements. Complainants
contend these route assignments, including route 1016, contained damaged
homes that were vacant, under construction, and poorly marked due to
damage from Hurricane Katrina.
STANDARD OF REVIEW
All post-hearing factual findings by an AJ will be upheld if supported by
substantial evidence in the record. 29 C.F.R. � 1614.405(a). Substantial
evidence is defined as "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. Id. In the
subject case, we find that the AJ's finding that Complainants failed to
prove discrimination is not supported by substantial evidence in the
record, and that Complainants have presented sufficient evidence to
establish that the Agency's articulated reasons are pretextual.
ANAYLSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainants
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). As a first step, Complainants must generally establish a prima
facie case by demonstrating that they were subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts
of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. In
the present case, Complainants may establish a prima facie inference
of discriminatory removal by showing that: (1) they were a member of
protected classes; (2) they were meeting the normal requirements of the
position; and (3) they were removed while similarly situated employees
outside of their protected groups were retained. See Moore v. City of
Charlotte, N.C., 754 F.2d 1100, 1105-1106 (4th Cir. 1985), cert. denied,
472 U.S. 1021 (1985); Flowers v. Crouch-Walker Corp., 552 F.2d 1277,
1282 (7th Cir. 1977).
It is well established that in order for comparative evidence relating to
other employees to be considered relevant, all relevant aspects of the
employees' work situation must be identical or nearly identical, i.e.,
that the employees report to the same supervisor, perform the same job
function, and work during the same time periods. See Anderson v. Dep't
of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003); Stewart v. Dep't
of Defense, EEOC Appeal No. 01A02890 (June 27, 2001). The AJ found
that Complainants failed to prove that a similarly situated comparator
outside of their protected classes was retained. More specifically, the AJ
found that CW1 and CW2 were transferred and were evaluated by different
supervisors and thus were not substantially similar to Complainant. We
disagree.
It is undisputed that Complainants, CW1, and CW2 were all initially
supervised by S1. Even though CW1 and CW2 were transferred, completing
probation elsewhere, the record demonstrates that S1 had the opportunity
to evaluate and terminate them before they were transferred. Specifically,
testimony reveals that CW1 worked Route 1016 for two to four weeks
before being transferred out of Prichard Station. Williams Hr'g Tr.,
at 192. Similarly,
Complainants worked Route 1016 at Prichard Station for approximately four
weeks, but were terminated. Id. at 164. We find that CW1 and CW2 were
similarly situated to Complainants because they were both supervised by
S1, were PTF probationary mail carriers at Prichard Station, and were
employed during the same relevant time period. As such, we find that
Complainants have established a prima facie case based on race and sex.
The burden now shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the AJ
determined that the Agency, based on the testimony of S1, articulated
that Complainants were terminated, among other reasons, due to poor "work
quantity," "work quality," and failure to follow instructions. Payne
Hr'g Tr., at 230-231. This explanation meets the Agency's very light
burden of production under Burdine.
To ultimately prevail, Complainants must prove, by a preponderance of the
evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993). We find that Complainant has clearly
done so in the present case, and the AJ erred in finding otherwise. In
that respect, we find that the AJ did not consider Complainants' evidence
that was offered to establish that the Agency's articulated reason is
unworthy of belief. We note that the Supreme Court has held that the
fact-finder may find pretext where she determines that the Agency's
articulated reason is unworthy of belief. Reeves, 530 U.S. at 133. In
this regard, we find that Complainants have presented credible evidence
to establish that the Agency's nondiscriminatory reasons are unworthy
of belief.
First, we find that S1's testimony that Complainants did not complete
their required routes within the required allotted time is not
credible. It is undisputed that Complainants were assigned to mail
delivery Route 1016. Further, it is undisputed that a majority of
this route, as a result of Hurricane Katrina, contained no street
signs, flooding, downed trees, and houses that were vacant and/or
damaged. Williams Hr'g Tr., at 21, 22, 29, 63; Williams ROI at 37. A
Mail Carrier (MC1) with 37 years of experience testified at the hearing
that it is difficult to know where to turn on Route 1016. Williams
Hr'g Tr., at 164. MC1 further testified that "we have guys that have
been there since 18 and 19 years. They . . . will be asking me where to
turn." Id. Also, Complainants were given no maps for Route 1016. Id. at
24. The record also reflects that on the same day of working Route
1016, Complainants were also made to take additional routes to fill in
for an absent employee. Id. at 30-31. The record further reflects that
Complainants were not given credit for the extra time it took to perform
mail delivery on these additional routes. Id. at 32. These additional
routes were routes Complainants had not carried before. Id. at 36.
Further, in contradiction of S1's testimony, MC1 testified that the routes
assigned to Complainants were never checked for time. MC1 testified that
"you cannot . . . expect [Complainants] to do an eight-hour job on these
routes that have no stable time. These routes haven't been checked out
for time." Payne Hr'g Tr., at 140-141.
Second, we find that S1's testimony that Complainants were terminated
for not delivering mail while on their street routes is also not
credible. In this regard, the record clearly does not support this
nondiscriminatory explanation given by S1. In particular, it is
undisputed that Route 1016 contained houses that were either abandoned,
under construction, or poorly marked due to hurricane damage. Record
testimony demonstrates that Complainants were unable to deliver this mail
due to this circumstance. Payne Hr'g Tr., at 12, 14; Williams Hr'g Tr.,
at 18-19, 102-103. As a result, Complainants would return to Prichard
station with mail they could not deliver. Id. Complainants reported
this problem to management, but were told to leave it on the case for
the regular carrier to sort out for the next day. Id.
Further, S1's testimony that contributing to Complainants termination was
the fact that Complainant Williams was spotted not wearing his seatbelt
and Complainant Payne left his postal vehicle engine running is clearly
also not credible. Specifically, the record reflects that CW1 was cited
for not wearing her seatbelt and not locking her postal vehicle, but
termination was never considered. Payne ROI at 18. We also note that
Complainants were only working street routes for four days when they
received their 30-day unsatisfactory evaluations in both "Work Quality"
and "Work Quantity." Complainants' Appeal Brief at 2. We further note that
another Mail Carrier (MC2) testified that Complainants were never given
the opportunity to learn their routes and did not have the proper time
to be evaluated. Payne ROI at 36. As such, we find the Agency has not
provided a credible reason to explain why both Complainants, terminated
on the same day, were terminated before their 60-day evaluations, while
CW1 and CW2 were allowed to transfer before their 60-day evaluations and
were never terminated. Payne ROI at 97. Therefore, we find that the Agency
has not supported its reasons for terminating Complainants, and conclude
that Complainants have shown that the Agency's reasons were pretext for
discrimination based on race and sex. In this regard, we find that the
Agency's reasons are unsupported by the record and unworthy of belief.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the AJ's
decision is not supported by substantial evidence. Therefore, we REVERSE
the Agency's final orders adopting the AJ's decisions.
ORDER (D0610)
The Agency is ORDERED to take the following remedial action:
(1) The Agency shall offer Complainant's reinstatement to the
position of City Mail Carrier, retroactive to the date of termination.
The Agency shall allow Complainants not less than ten (10) business days
to determine whether to accept the offer of reinstatement. Should either
Complainant reject the offer of reinstatement, entitlement to back pay
shall terminate as of that date of refusal.
(2) The Agency shall determine the appropriate amount of back pay,
with interest, and other benefits due Complainants, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. Complainants 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 checks to Complainants for the
undisputed amount within sixty (60) calendar days of the date the
Agency determines the amount it believes to be due. Complainants may
petition for enforcement or clarification of the amount in dispute.
The petition(s) 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 undertake a supplemental investigation to
determine Complainants' entitlement to compensatory damages under
Title VII. The Agency shall give Complainants notice of their right
to submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)
and request objective evidence from Complainant in support of his request
for compensatory damages within forty-five (45) calendar days of the
date Complainant receives the Agency's notice. No later than ninety
(90) calendar days after the date that this decision becomes final,
the Agency shall issue a final Agency decision addressing the issue of
compensatory damages. The final decision shall contain appeal rights to
the Commission. The Agency shall submit a copy of the final decision to
the Compliance Officer at the address set forth below.
(4) The Agency is directed to provide EEO training for the management
official(s) responsible for the discrimination against Complainants,
within ninety (90) days of the date this decision becomes final.
The training shall address their responsibilities with respect to
eliminating discrimination in the workplace, with an emphasis on Title
VII.
(5) The Agency shall consider taking disciplinary action against
the responsible management official(s). The Agency shall report its
decision within thirty (30) calendar days. If the Agency decides to
take disciplinary action, it shall identify the actions taken. If the
Agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline. The Commission
does not consider training to constitute disciplinary action.
(6) The Agency shall post a notice of the finding of discrimination,
as detailed below.
(7) 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 Complainants,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Prichard Postal Station in Mobile,
Alabama 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 22, 2010
Date
1 The Commission may, in its discretion, consolidate complaints filed
by two or more complainants consisting of substantially similar claims
or relating to the same matter. See 29 C.F.R. � 1614.606.
2 The AJ in her decision erroneously noted that CW1 began her employment
at Prichard in 2006. Payne Hr'g Tr., at 224. Rather, the record reflects
that CW1 began her employment at Prichard in 2005. Payne ROI at 18.
3 The AJ issued a separate decision for each Complainant with a very
similar analysis.
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0120082510
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082497
0120082510