01974491
02-01-2000
Leslie J. McCollins, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Leslie J. McCollins, Jr. v. United States Postal Service
01974491
February 1, 2000
Leslie J. McCollins, Jr., )
Complainant, )
) Appeal No. 01974491
v. ) Agency No. 1H375100196
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of 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.<1> The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the agency's decision is AFFIRMED
in part and VACATED and REMANDED in part.
ISSUES PRESENTED
The issues on appeal are whether complainant has proven by
a preponderance of the evidence that he was subjected to unlawful
employment discrimination or retaliation on the above-cited bases<2> when:
(1) he was placed off the clock on December 5, 1995; and (2) he was issued
a Notice of Removal on January 12, 1996, effective February 23, 1996.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a PS-5 Clerk, at the agency's Air Mail Center in Memphis,
Tennessee. On December 5, 1995, complainant and a co-worker (C1) (female,
prior EEO activity unspecified) were involved in a confrontation over a
foot pedal that controls a belt used in scanning and dispatching mail.
C1 moved the foot pedal from its usual position twice, and complainant
retrieved it twice. During complainant's second retrieval of the foot
pedal, complainant used profanity and made what the agency considers an
"implied" threat to C1. Complainant's supervisor (S1) (female, prior
EEO activity unspecified) then became involved and when complainant
acknowledged that he had used profanity and told C1 something along
the lines of "[s]omebody is going to kick you're [sic] a-- one day if
you keep playing around", he was placed "off the clock" for threatening
a co-worker. Complainant was issued a letter of removal on January 6,
1996 for "rude, disruptive, abusive, and intimidating conduct toward a
co-worker, effective February 23, 1996.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on February 6, 1996,
raising the issues presented above. Complainant acknowledged his use
of bad language, but argued that such language was always used on the
workroom floor, that he did not threaten C1 and that C1 had impliedly
threatened him during their exchange. Following an investigation,
the agency issued a final decision, finding against complainant on his
claims. Specifically, the agency found complainant had not established
a prima facie case of sex discrimination because he did not provide, and
a search of the agency records did not reveal, any females at the Air
Mail Center who had threatened other employees. Therefore, the agency
argued, there were no similarly situated females. The agency also found
that complainant had not established a prima facie case of retaliatory
discrimination because he did not prove there was a causal connection
between his prior EEO activity (filing a complaint on February 16, 1995)
and the adverse employment decision.
Finally, the agency argued that it had articulated a legitimate
non-discriminatory reason for its actions which complainant did not
show to be pretextual. The agency argued that it relied on its "Zero
Tolerance Policy on Threats and Violence in the Workplace" in taking the
adverse actions against complainant. S1 explained that once complainant
admitted to the rude, disruptive, abusive and intimidating behavior he
displayed toward a coworker, she took the required actions in dealing
with the unacceptable behavior.
Complainant raised no new contentions on appeal and the agency requested
that the FAD be affirmed.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination or retaliation,
the allocation of burdens and order of presentation of proof in a Title
VII case is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Complainant has the initial burden of establishing a prima facie case
of discrimination or retaliation. A prima facie case of discrimination
based on sex is established where complainant has produced sufficient
evidence to show that (1) he is a member of a protected class; (2) he
was subjected to an adverse employment action; and (3) similarly situated
employees outside his protected class were treated more favorably in like
circumstances. A prima facie case of retaliation is established where
complainant has produced sufficient evidence to show that (1) she engaged
in protected activity; (2) the agency was aware of his participation in
the protected activity; (3) he was subjected to an adverse employment
action; and (4) a nexus exists between the protected activity and
the agency's adverse action. Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd 545
F.2d 222 (1st cir. 1976); Van Druff v. Department of Defense, EEOC
Appeal No. 01962398 (February 1, 1999). Complainant may also meet
the initial burden in both sex and retaliation cases by presenting
other evidence which raises an inference of discrimination. Potter
v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, complainant retains the burden
of proof to establish discrimination by a preponderance of the evidence.
It is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis
in original).
In the case at hand, the agency argued that complainant failed to
establish a prima facie case of discrimination based on reprisal.
The record indicates that complainant has prior EEO activity and that
management was aware of this activity. However, the agency argued that
complainant failed to prove that there was a causal connection between
his prior activity and the adverse employment actions taken against him.
The necessary causal connection may be shown by evidence that the
adverse action followed the protected activity within such a period
of time and in such a manner that a reprisal motive can be inferred.
See Devereux v. United States Postal Service, EEOC Request No. 05960869
(April 24, 1997) , citing Grant v. Bethlehem Steel Corp., 622 F.2d 43
(2nd Cir. 1980). Here, records indicate that complainant's most recent
previous complaint of discrimination was filed on February 16, 1995,
almost ten months prior to the December 5, 1995 incident and more than
eleven months prior to the issuance of complainant's notice of removal.
Moreover, complainant offers no evidence that his earlier EEO activity
was the motive behind the adverse actions at issue. Therefore, we agree
with the agency that complainant has failed to establish a prima facie
case of reprisal discrimination.
Turning now to complainant's allegation that he was the victim of sex
discrimination, we find that the investigative file contains insufficient
evidence upon which to determine if the agency's actions were lawful under
Title VII. While the complainant does have the burden of establishing
discrimination, the agency has failed to develop an impartial and
appropriate factual record, as required by our regulations. See 64
Fed. Reg. 37,644 37, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108(b)).
The agency argued that complainant did not establish a prima facie
case of sex discrimination because he did not indicate any similarly
situated employees who were treated more favorably. However, a review
of the record reveals that complainant named several comparative
employees in PS Form 2564-A (EEO Request for Counseling). While two
of these employees were male, and therefore not outside complainant's
protected group, one of the employees cited by complainant was the
female co-worker (C1) whom he allegedly threatened. Complainant alleged
that C1 was an equally guilty participant in the altercation at issue
and in fact verbally threatened him, yet was not disciplined at all.
The investigative file does not contain any information on C1 to use in
determining whether she is similarly situated to complainant, nor does
the file contain an affidavit from C1. The agency did not respond to
complainant's allegation that C1 threatened him yet was not disciplined.
Moreover, the investigative file does not include even one affidavit from
any of the several witnesses to the altercation between complainant and
C1 which would perhaps refute or bolster complainant's claim that C1
threatened him. Therefore, there is insufficient evidence upon which
to decide if complainant has established a prima facie case.
The agency indicated that the safety of its employees and a zero tolerance
of violence policy were the legitimate non-discriminatory reasons for
the actions taken against complainant. However, the agency's failure
to investigate complainant's claim that C1 threatened him and the lack
of evidence in the file concerning the true nature of the altercation
(i.e., no witness statements), make it impossible to judge the validity
of the agency's claim.
Due to the insufficiency of the investigative file, we are unable
to make a determination on the merits of complainant's claims of sex
discrimination.
CONCLUSION
Accordingly, the agency's finding of no discrimination on the basis of
reprisal is AFFIRMED, and the agency's finding of no discrimination on
the basis of sex is VACATED. The complaint is REMANDED for a supplemental
investigation in accordance with the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
1. The agency shall ensure that the investigator obtains personnel
records on the female co-worker with whom complainant had an altercation
on December 5, 1995 (C1), which indicate her position, supervisor and any
disciplinary actions which have been taken against her for altercations
in the workplace, verbal threats or similar behavior.
2. The agency shall ensure that the investigator obtains an affidavit
from C1. This affidavit shall provide information concerning what
happened during the altercation, including how it began and what C1 did
and said to complainant.
3. The agency shall ensure that the investigator obtains affidavits
from any witnesses to the altercation between complainant and C1.
These witnesses will include the "other employees" whom the agency says
observed the incident on page 5 of the FAD. These witnesses will be
asked to explain what they saw, including whether either complainant,
C1, or both, made threatening remarks or acted in a way that could be
described as rude, disruptive, abusive and/or intimidating.
4. The agency shall ensure that the investigator obtains supplemental
affidavits from S1 and the Plant Manager (PM). In these affidavits,
S1 and PM will explain why they disciplined complainant, but failed to
discipline C1, and/or investigate complainant's allegation that he was
verbally threatened. S1's supplemental affidavit should also respond
to complainant's allegation that S1's statement that complainant had
been disciplined for similar behavior in the past was incorrect in that,
as S1 knew, complainant was exonerated.
5. The agency shall ensure that the investigator obtains documentary
evidence of the agency's claim that complainant had "a history of loud,
verbal use of combative language whenever [he] did not agree with a
situation". The investigator should also obtain documentary evidence
concerning any previous discipline complainant received for similar
behavior.
The supplemental investigation will be completed and a copy will be sent
to complainant within ninety (90) calendar days of the date this decision
becomes final. 29 C.F.R. � 1614.108(e). Thereafter, the agency shall
issue a final agency decision within sixty (60) calendar days. A copy
of the agency's notice transmitting the investigative file to complainant
must be submitted to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
02/01/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2 While complainant stated on PS Form 2564-A (EEO Request for Counseling)
that management was discriminating against Black males in a variety
of ways, the EEO Counselor's report did not cite "race" as a basis and
complainant did not indicate in his complaint or in his affidavit that he
wished to add race as a basis for his allegations. Rather, complainant
repeatedly noted that his complaint was based on sex and reprisal and
we will analyze it as such.