01975572
08-05-1999
Hollie J. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Hollie J. Brown, )
Appellant, )
) Appeal No. 01975572
v. ) Agency No. 1D-251-1006-96
) Hearing No. 170-96-8350X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges that he was discriminated against on the basis of race
(Black) when in 1995 on September 24th and 30th; October 7th, 14th, 21st,
and 28th; and November 4th and 11th, he had to take a lunch break when
he worked his scheduled day off while White employees who worked their
scheduled days off did not have to take a lunch break. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is VACATED and REMANDED.
The record reveals that during the relevant time, appellant was a PS-4
Mailhandler on Tour I at the agency's Processing and Distribution Center
in Charleston, West Virginia. Appellant filed a formal EEO complaint on
November 16, 1995, alleging that the agency had discriminated against him
as referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e), the
AJ issued a Recommended Decision (RD) without a hearing, finding no
discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
discrimination because none of the other non-Black, PS-4 Mailhandlers on
Tour 1 were under the same supervisor as appellant. Assuming appellant
had been able to establish a prima facie case of discrimination, the AJ
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that �it was unhealthy and a safety
factor for employees to work eight hours without a lunch break� and
that all employees were required to take a lunch break. The AJ found
that appellant failed to prove, by a preponderance of the evidence,
that the agency had discriminated against him on the basis of race.
The agency's FAD adopted the AJ's RD.
On appeal, appellant contends that the AJ erred when she found that he
was not similarly situated to his co-workers because all Mailhandlers on
Tour 1 were under the same supervisor. Appellant also reiterated his
allegation that the White Mailhandlers were not required to take lunch
when they worked their days off. The agency did not submit a response.
Initially we address the AJ's decision to issue an RD without a
hearing. The Commission's regulations allow an AJ to issue a decision
without a hearing when she concludes that there are no facts in genuine
dispute. 29 C.F.R. � 1614.109(e)(3). In an administrative proceeding
under Title VII, summary judgment is appropriate if, after adequate
investigation, appellant has failed to establish the essential elements
of his case, i.e., a prima facie case or evidence sufficient to raise
an inference of discrimination. See O'Connor v. Consolidated Coin
Caters Corp., 116 S.Ct. 1307 (1996); EEOC Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996).
We disagree with the AJ's determination that summary judgment was
appropriate in this matter. The record establishes that in September
1995, one of the Distribution Operations Supervisors was the Acting
Manager of Distributions Operations (AMDO). Although the Plant Manager
testified that it was the agency's policy to require an employee to take
lunch when working in excess of six hours on a day off, the preponderance
of the evidence in the record establishes that this policy was not
enforced on Tour I. The AMDO testified that, with the backing of the
Plant Manager, he undertook to enforce this policy on Tour I and that he
informed appellant and then informed the supervisors and 204-Bs on Tour I.
However, testimony from other Mailhandlers and Distribution Operations
Supervisors contradicts management's testimony and suggests that the
policy was not strictly enforced except against appellant. Accordingly,
the credibility of management's testimony has been challenged.
We also note that the AJ found that appellant failed to name a similarly
situated employee. After a careful review of the record, we identified
two White PS-4 Mailhandlers on Tour 1 (C1 and C2) who stated that, as of
October 1993, all Tour 1 Mailhandlers, were under the same supervisor.
Moreover, C1 stated that he was not required to take a lunch break until
after appellant had initiated the EEO process, and C2 stated that he
was never instructed to take a lunch break when he worked his day off.
Furthermore, we find the AMDO's testimony that, due to scheduling,
he was unable to check the Employee Activity Reports in regard to C1
and C2 to be inconsistent with evidence establishing that appellant,
whose activity was monitored, shared days off with C1 and C2.
In conclusion, we find that there is enough evidence in this record
to raise an inference of racial discrimination and that the issuance
of an RD pursuant to 29 C.F.R. � 1614.109(e) was improper. We note
that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record
and to examine witnesses.� See the Commission's Management Directive
(MD-110), Chapter 6, page 6-1; see also 29 C.F.R. � 1614.109 (b) and
(c). Accordingly, the final agency decision which adopted the AJ's RD
is hereby VACATED and REMANDED.
The agency shall take the actions set forth in this decision and ORDER
below.
ORDER
The agency shall acknowledge to the appellant that it has received
the remanded complaint within thirty (30) calendar days of the date
this decision becomes final and advise appellant that it has ordered an
expedited supplemental investigation to be completed. The agency shall
cooperate with the investigator's requests for documents and affidavits,
and ensure that the investigation is completed within ninety (90) days
of the day this decision becomes final.
The investigator shall obtain the evidence necessary to explain the
supervisory structure on Tour 1 in order to make a determination as
to who supervised appellant and co-workers similarly situated to him
during the relevant time. The investigator shall also obtain further
affidavits from appellant's fellow Mailhandlers, including those
identified in appellant's brief in support of his appeal, to ascertain
when and if they were instructed to take lunch if working in excess of
six hours on their scheduled day off; and to what extent they were aware
that appellant was being treated differently. The investigator shall
also produce the agency's time and attendance records tracking any work
activity on scheduled days off from all employees whose affidavits are
contained in the record. The investigator shall also determine to what
extent the required lunch policy is enforced at the agency's facility,
and if the policy is not uniformly enforced, the investigator shall
determine against whom it is enforced and why.
Following the completion of the expedited, supplemental investigation, the
agency shall process the remanded complaint and completed investigation in
accordance with 29 C.F.R. � 1614.109 et seq., and request the appointment
of an AJ pursuant to 29 C.F.R. � 1614.109(a).
A copy of the agency's letter of acknowledgment to appellant, a copy
of the notice that transmits the investigative file, a copy of the
completed supplemental investigative report, the notice of rights, and
the request to appoint an AJ must be sent to the Compliance Officer as
referenced below.
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. � 1614.604(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 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 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 (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:
August 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations