01977090
10-29-1999
Lawrence T. Carter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Lawrence T. Carter, )
Appellant, )
) Appeal No. 01977090
v. ) Agency No. 1F943102196
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (African-American), sex (male), and
reprisal (prior EEO activity), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant
alleges he was discriminated against in July 1996 when a supervisor and a
co-worker collaborated in making false statements regarding his character,
causing his co-workers to treat him with animosity and creating a hostile
work environment. 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 employed
as a Clerk at the agency's Air Mail Facility in San Francisco, California.
In his capacity as a Union Stewart, appellant was involved in a conflict
where a mentally challenged co-worker accused a supervisor of sexual
harassment. In the course of the investigation, appellant alleges
that his supervisor (S1), and the co-worker (CW) falsely accused him of
conspiracy and fraud, and that CW made a false and defamatory writing
against him with full knowledge and acquiesce of S1. Appellant sought
EEO counseling and, subsequently, filed a formal complaint on October
23, 1996. At the conclusion of the investigation, appellant was issued
a FAD, finding no discrimination.
In its FAD, the agency concluded that appellant failed to establish a
prima facie case of race or sex discrimination, noting that appellant
did not present evidence that he was treated differently than similarly
situated individuals not within his protected classes. The FAD also
held that appellant failed to establish a prima facie case of reprisal
because he did not demonstrate a nexus between his instant allegations
and his prior protected activity. Additionally, the FAD found that
appellant failed to demonstrate that he was subjected to a hostile
work environment. The FAD further noted that S1 �credibly testified�
that she did not make the false accusations in question, and that CW
did not make a false and derogatory written statement against appellant.
Based on this determination, the FAD held that the agency had articulated
a legitimate, non-discriminatory, non-pretextual reason for its actions.
On appeal, appellant contends, among other things, that the agency's
investigation was inadequate because only two witnesses were interviewed,
S1 and a co-worker who allegedly witnessed the act of sexual harassment.
Appellant argues that the agency deemed S1's testimony as credible,
and based its determination upon her statements without question or
corroborating evidence, despite the fact that she was the alleged
discriminating management official and her testimony was likely to be
self-serving. Appellant further contends that his claim of a hostile work
environment was not investigated, and that none of the witnesses appellant
identified were contacted by the investigator<1>. Appellant further
opines that the poor investigation may be the result of investigator bias.
The agency stands on the record and requests that we affirm its FAD.
With respect to the agency's prima facie case determination regarding
reprisal, we note that the FAD fails to indicate why it found that
appellant had not established the required �nexus.� Our review of the
record shows that appellant contacted an EEO counselor approximately one
year prior to the instant matter, concerning the conduct of both S1 and CW
in a race based incident, and that appellant alleges that the controversy
concerning this matter has been on-going between himself and S1 and CW.
Therefore, we find that this is sufficient to establish the �nexus� and a
prima facie case of reprisal. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) and Frye v. Department of Labor, EEOC Request
No. 05940764 (December 15, 1994).
With respect to the race and sex prima facie case determinations in the
FAD, we note that the �McDonnell Douglas� comparative evidence analysis
used by the agency is inappropriate because of the likely impossibility
of identifying similarly situated individuals (i.e.,�union stewards�)
who were subjected to false accusations and a hostile work environment
because of race or sex.<2> See McDonnell Douglas v. Green, 411 U.S. 792
(1973) and Hunter v. U.S. Postal Service, EEOC Request No. 01960762
(October 1, 1998). In situations like this, it is well established
that the �inference of discrimination� may be shown some other way. See
Scura V. U.S. Postal Service, EEOC Request No. 01965021 (October 8,
1998)(citing Furnco Construction Corp. v. Waters, 438 U.S. 567,576
(1978)). In his affidavit, appellant testified that he perceived racial
and sexual animus against him as a Black male on the part of S1 and
CW, who are both Hispanic and female, alleging that they are often in
collusion for the purpose of manipulating and exploiting postal employees
working at the facility who were not of their race and sex. We note also
that appellant's prior EEO contact dealt with a race based allegation
involving both S1 and CW. Therefore, we find that appellant's statements
are sufficient to create an inference of sex and race discrimination
and that he has thereby established a prima face case on these bases.
Although we find that the evidence of record is adequate to make the above
determinations, we conclude that the evidence is otherwise insufficient
to allow a determination on the merits of appellant's allegations of
discrimination in this case.
Our regulations and the EEOC Management Directive for 29 C.F.R. Part
1614 require agencies to develop a complete and impartial factual
record. See 29 C.F.R. � 1614.108(b) and EEOC Management Directive for
29 C.F.R. Part 1614, EEO-MD-110, at 5-1 (October 22, 1992). As noted
by appellant on appeal, the investigator failed to contact witnesses
who could provide information regarding the alleged collusive behavior
and animus of S1 and CW, the false accusations as claimed by appellant,
and appellant's work environment at the facility. Furthermore, we find
that S1's credibility cannot be determined without further evidentiary
development, and that it was inappropriate for the FAD to find her
testimony credible and base a finding of no discrimination on essentially
no more than her statements alone. This is particularly true where, as
here, appellant has given the names of relevant witnesses who allegedly
have observed the discriminatory behavior in question.
We therefore VACATE the agency's finding of no discrimination, and
REMAND this matter for a supplemental investigation in accordance with
the following ORDER, and the applicable EEOC Regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. Due to appellant's allegation of investigator bias, the agency shall
appoint another investigator to conduct the supplemental investigation.
2. The agency shall ensure that the investigator contact all witnesses
identified by appellant and obtain affidavit testimony regarding the
following: the alleged collusive behavior and animus of S1 and CW;
whether, or in what manner, S1 or CW made the false accusations against
appellant; and, a description of appellant's work environment at the
facility, including a reference to whether, or to what extent, appellant
was subjected to a hostile work environment.
3. The agency shall ensure that the investigator obtain any other
affidavits, records or statistics not specifically requested in this
ORDER, and not inconsistent with this decision, which may be informative
regarding the inquiries set forth in #2 above or otherwise relevant in
determining the veracity of appellant's complaint allegations.
4. The agency shall ensure that the investigator complete a supplemental
investigation within one-hundred and twenty (120) calendar days of
the date this decision becomes final. Thereafter, the agency shall
provide the appellant, within thirty (30) calendar days from the date
the agency completes the supplemental investigation, an opportunity to
respond to the supplemental investigative report. The agency shall then
take any action appropriate and consistent with appellant's response,
and issue a new final agency decision within thirty (30) calendar days of
appellant's response or, if appellant fails to respond, within thirty (30)
calendar days following the last day appellant would have been permitted
to respond. 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 (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 the
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 the
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:
October 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1We note that the
Report of Investigation indicates that one
other witness, the supervisor accused of sexual
harassment, was contacted by the investigator,
but did not respond. However, it does not appear
that the investigator made any follow-up inquiry
or further attempt to obtain an affidavit from
this witness.
2According to appellant's allegations, it was in the context of his
role and activities as a union steward which provided S1 and CW with
the opportunity to make false accusations against him, but that the
motivation itself was not based on his union association, but rather
upon animus toward his race and sex.