01982291
05-03-1999
Gloria Waddill, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Gloria Waddill, )
Appellant, )
)
v. ) Appeal No. 01982291
) Agency No. 4E-852-1061-95
William J. Henderson, ) Hearing No. 350-96-8124X
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On January 26, 1998, Gloria Waddill (appellant) timely appealed the
final decision of the United States Postal Service (agency), dated
December 29, 1997, which concluded that she had not been unlawfully
retaliated against in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq., the Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
In her complaint, appellant had alleged that officials at the agency's
Sun Station in Tucson, Arizona, discriminated against her on the bases
of her national origin (Hispanic), sex (female), age (46; DOB: 12-11-48)
and/or physical disability (head injury resulting in migraine headaches)
when she was terminated as a transitional employee and given a casual
appointment on November 18, 1994, and then terminated from the casual
appointment on December 31, 1994. This appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001.
The record reflects that appellant was initially employed by the agency
as a casual employee in July 1992. She was converted to an transitional
employee (TE) appointment in February 1993. As a TE appellant received
a higher hourly wage than as a casual. In August 1993, appellant
was injured on-the-job when she walked into a tree and hit her head.
She testified that she experiences migraine headaches as a result of
this injury. Appellant's one- year appointment as a TE ended in February
1994, but after a six-day break in service she was reappointed as a TE.
Up to this point, appellant had worked at the Kino Station in Tucson.
In August 1994, appellant was reassigned to the Sun Station.
In the fall of 1994, the agency negotiated a new collective bargaining
agreement which provided for the curtailment of TE and casual
appointments (as opposed to career positions) by November 18, 1994.
Each station was allowed to retain a certain number of TEs. The managers
at the various stations were asked to rank their TEs on the bases of
performance, ability, attitude, attendance and ability to get along with
others, in order to determine which TEs would be retained. Only the top
four at Sun Station, where appellant worked, were allowed to be retained.
The evidence does not establish where appellant was ranked, but managers
testified that she did not make the top four. As a result, appellant's
TE appointment was terminated effective November 18, 1994.The four TEs
retained were a 22-year-old Hispanic male; a 26-year-old Hispanic female;
a 44-year-old non-Hispanic male; and a 23-year-old Hispanic male.
Although appellant's TE appointment was terminated, she was retained as a
casual employee at the same rate of pay as she had been receiving as a TE.
However, on December 31, 1994, that appointment was also terminated. Two
other casuals (40-year-old Hispanic female; and 30-year-old non-Hispanic
male), who had also previously been TEs, were reappointed as casuals for
two 89-day terms at their former TE rate of pay. Their last day in pay
status was June 29, 1995.
On February 21, 1995, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On October 8, 1997, following a hearing at which four witnesses testified,
the AJ issued a decision from the bench concluding appellant had proven,
by a preponderance of the evidence, that she had been discriminated
against on the bases of her national origin, sex and/or age when she
was terminated from her casual appointment on December 31, 1994. On the
other hand, the AJ found no discrimination on any of the bases alleged
when appellant's TE appointment was terminated and she was converted to a
casual employee on November 18, 1994.<1> The AJ dismissed appellant's
disability discrimination allegations with regard to both issues,
concluding appellant had not established that she was an individual with
a disability as defined by the Rehabilitation Act.
In reaching these conclusions, the AJ found that proffered legitimate
explanations for its decision to terminate appellant's TE appointment
in November 1994, which were fully supported by the evidence of record.
With regard to this issue, the AJ found that appellant failed to meet
her burden of proving the agency's proffered reasons for its actions
were a pretext masking discrimination. On the other hand, the AJ found
that the agency failed to offer any explanation for why the other two
similarly situated former TEs were retained for two casual appointments
while appellant was not. The AJ concluded that without an articulation of
a legitimate, nondiscriminatory reason for its actions, the inference of
discrimination raised by appellant's prima facie case remains unrebutted
and appellant was entitled to a finding of discrimination.
On December 29, 1997, the agency issued its final decision, rejecting that
portion of the AJ's recommended decision which found discrimination with
regard to appellant's December 1994 termination as a casual employee. It
is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the appropriate regulations, policies and laws. Based
on the evidence of record, the Commission discerns no basis to disturb
the AJ's finding of national origin, sex and/or age discrimination.
The Commission notes that nothing proffered by agency in its final
decision or on appeal differs significantly from the arguments raised
before, and given full consideration by, the AJ. Accordingly, it is the
decision of the Equal Employment Opportunity Commission to REVERSE that
portion of the agency's final decision which rejected the AJ's finding
of discrimination. In order to remedy appellant for its discriminatory
actions, the agency shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within forty-five (45) calendar days of the date this decision
becomes final, the agency shall provide appellant with a back pay award,
with interest, reflecting any salary and/or benefits she lost when she
was discriminatorily terminated from her casual appointment on December
31, 1994. The back pay award shall end on June 29, 1995, the date
other similarly situated casual employees were terminated. Appellant
shall be paid at her TE hourly rate ($12.54 per hour). The agency
shall determine the appropriate amount of back pay, interest and other
benefits due appellant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The appellant 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 appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The appellant 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."
(B) The agency shall provide training to the officials responsible
for its actions in this matter in their responsibilities under all the
Federal equal employment opportunity statutes.
(C) The agency shall post at the Sun Station, Tucson, Arizona, 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.
(D) 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 appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
May 3, 1999
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Sun Station, Tucson, Arizona, supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Sun Station, Tucson, Arizona, has been found to have discriminated
against the individual affected by the Commission's finding on the bases
of her national origin, sex and/or age when she was terminated from
her casual appointment in December 1994. The Commission has ordered
that this individual be provided with an appropriate back pay award,
as well as directing training for the responsible management officials.
The Sun Station, Tucson, Arizona, 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 and will not retaliate against employees who file EEO complaints.
The Sun Station, Tucson, Arizona, 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: _________________
1 Appellant does not dispute this part of the AJ's decision.