01A03866_r
09-21-2001
Lynnea St. John, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lynnea St. John v. United States Postal Service
01A03866
September 21, 2001
.
Lynnea St. John,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03866
Agency No. 4-C-442-0080-98
DECISION
I. INTRODUCTION
On March 16, 1999, the agency dismissed six of eight claims complainant
raised in the instant complaint.<1> Complainant appealed this partial
dismissal on March 20, 1999, but due to an administrative error, the
Commission never docketed the appeal. Meanwhile, the agency proceeded
with the merits of complainant's remaining claims. On August 31, 1999,
the agency issued a decision finding no discrimination, and complainant
timely appealed. The Commission will address both appeals in the
present decision.
II. APPEAL FROM PARTIAL DISMISSAL
In her complaint, complainant alleged harm on the bases of sex (female),
age, disability (stomach problems, stress, anxiety, depression, and fear),
and in reprisal for prior EEO activity when:
(1) On October 28, 1997, complainant's job duties and hours were changed;
On October 20, 1997, complainant received a proposed Letter of Warning
(LOW) in lieu of a seven-day suspension;
On October 6, 1997, no action was taken when violence was reported;
On July 31, 1996, the agency violated Privacy Act guidelines;
From October 11 - 15, 1997, complainant was denied annual leave;
From November 8 - 12, 1997, complainant was denied annual leave;
On October 3, 1993, complainant was not properly trained nor trained
in a timely manner for the job for which she was selected as a newly
appointed Supervisor in Customer Service, despite making many written
requests for proper training, including on April 24, 1995, July 27,
1996, and September 23, 1997; and
On August 10, 1995, September 11, 1995, June 22, 1996, July 27, 1996,
October 5, 1996, August 1, 1997, August 15, 1997, August 26, 1997,
September 12, 1997, September 29, 1997, and October 4, 1997, threats
of violence were made.
In its March 16, 1999 decision, the agency accepted claims (1) and
(6) for investigation, but dismissed the remaining claims for untimely
counselor contact. The agency found that complainant initially contacted
an EEO Counselor on December 10, 1997, more than forty-five days after the
matters alleged in claims (2) - (5) and (7) - (8). On appeal, complainant
argues that she timely contacted the EEO Counselor on October 27, 1997,
and provides a dated �Information for Precomplaint Counseling� form to
support her argument.
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2).
Upon review of the record, however, the Commission finds that
the October 27, 1997 contact concerned a prior complaint, Agency
No. 4-C-442-0045-98.<2> Complainant did not make EEO contact in the
present complaint until December 10, 1997. Therefore, complainant's
EEO contact was untimely, and the agency's dismissal of claims (2) -
(5) and (7) - (8) is AFFIRMED.
III. APPEAL FROM FINDING OF NO DISCRIMINATION
Complainant, a customer service supervisor who reported directly to the
Postmaster, was reassigned from supervising carriers to supervising window
clerks. The new duties had to be performed at different, later hours.
In its decision, the agency found that complainant failed to establish a
prima facie case of disparate treatment on any basis raised in claim (1).
In disparate treatment cases, complainant first must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In an unrebutted
affidavit, complainant claimed that in 1996, the Postmaster told her that
the carriers do not like working for a woman. According to complainant,
the Postmaster also informed her of a co-worker telling the Postmaster,
�he needed a man to take care of carriers.� These comments are sufficient
to establish complainant's prima facie case of sex discrimination for
claim (1). See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576
(1978).
Since complainant established a prima facie case of discrimination
on the basis of sex, the burden of production shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its action.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 , 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
To justify his actions, the Postmaster stated: �the decision was made
for the Voice of the Business, Customer, and Employee as well as for
the Office and [complainant] to relieve her mounting pressures.� He
further stated that complainant's duties were changed, �back to the
original hours originally hired for which was necessary for office
continuity and stability. Duties and responsibilities were diminished
and objectives set.�<3>
Neither the Postmaster, nor any other agency official, explained how
changing complainant's duties and hours affected business, customers,
nor office �continuity or stability.� Further, the record contains no
explanation for why complainant's �responsibilities were diminished and
objectives set.�
In her affidavit, complainant argued that the agency did not intend to
relieve any pressure on her, but rather to increase it. Complainant
contends that the Postmaster knew she preferred an early schedule,
in order to have her afternoons free to care for ill, elderly parents.
Complainant believes her duties were changed in order to change her to an
inconvenient schedule, causing more problems and stress. According to
complainant, the supervisor informed her on October 28, 1997, �you will
not have the job and early morning hours you like so well.�
Based on complainant's unrebutted affidavit and the agency's inadequate
justification, the Commission finds that the agency's reasoning was
a pretext for discrimination. Therefore, the Commission finds that
complainant has proven, by preponderance of the evidence, that she
suffered discrimination on the basis of sex. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 147-148 (2000) (permissible to
find discrimination where the agency's articulated reason is false).
Because of our disposition concerning the basis of sex, we decline to
reach the issues of whether complainant suffered discrimination on the
bases of age, disability, or reprisal.
Concerning claim (6), complainant failed to establish a prima facie case.
The Commission finds no similarly situated employee to complainant, and no
other evidence that could give rise to a prima facie claim. Further, even
if the Commission found that complainant had established a prima facie
claim, the agency articulated a legitimate reason that complainant failed
to overcome. Complainant's request for leave ultimately was approved
once complainant accumulated a sufficient leave balance. Therefore,
the agency's finding of no discrimination in claim (6) is affirmed.
Complainant outlined the remedies she sought in a January 4, 1998 letter.
She requested, inter alia, a return to her prior duties and work hours,
and a written apology from the Postmaster �for [his] part in causing me so
much ongoing pain and hardship.� The Commission interprets this letter
as a request for compensatory damages. See Henderson v. United States
Postal Service, EEOC Request No. 05980316 (July 9, 1999) (reference to
stress suffered by self and family sufficient to be considered a request
for compensatory damages). However, the record contains no information
from which the Commission can determine an appropriate award of damages.
On remand, the agency must determine an appropriate award of damages.
CONCLUSION
Accordingly, the agency's decision with regard to claim (1) is REVERSED.
The Commission finds that complainant suffered discrimination on the
basis of sex, and may be entitled to an award of compensatory damages.
The complaint is REMANDED for the agency to comply with the order
provided herein. The agency's dismissal of claims (2), (3), (4),
(5), (7), and (8) is AFFIRMED. The agency's decision finding of no
discrimination with regard to claim (6) also is AFFIRMED.
ORDER
Provided complainant currently is employed by the agency, it must provide
complainant with a written offer to return to the duties and work hours
she was assigned prior to October 28, 1997, supervising carriers as
opposed to window clerks. If complainant is not currently employed by the
agency, it need not submit this offer to complainant. The agency must
provide complainant with the written offer within thirty calendar days
of the date this decision becomes final, and allow complainant thirty
calendar days to respond to its offer. If complainant fails to respond
within the time limit, the agency may interpret complainant's silence as
a rejection of the offer, unless complainant can show that circumstances
beyond her control prevented a timely response. If complainant timely
informs the agency of her desire to return to the duties and work hours
she was assigned prior to October 28, 1997, then the agency must return
her to such duties and work hours within 10 days of when the agency has
been notified by complainant of that choice. A dated copy of this offer
or certification that complainant is no longer employed by the agency
must be sent to the Compliance Officer as referenced below.
The agency shall conduct a supplemental investigation of the compensatory
damages issue, including a written request to complainant to provide
evidence of such damages. No later than sixty (60) days after this
decision becomes final, the agency shall issue a final decision addressing
the issue of compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
POSTING ORDER (G0900)
The agency is ordered to post at its Salem, Ohio post office 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 (H0900)
If complainant 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 (K0501)
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 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 (M0701)
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), 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 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 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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 21, 2001
__________________
Date
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 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. has occurred at the agency's Salem,
Ohio post office.
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.
This facility was found to have discriminated against an employee on
the basis of sex. The facility was ordered to provide the employee
with equitable relief, proven compensatory damages, and all reasonable
attorneys fees and costs incurred in the processing of this complaint.
This facility will comply with federal law and 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: _________________
1This complaint also was subject to a 1998 settlement agreement.
Complainant alleged breach, and appealed to the Commission from the
agency's decision finding no breach, docketed as Appeal No. 01991374.
Subsequently, the agency reopened the underlying complaint, and issued
the decisions pending in the present appeal. As a result, the Commission
administratively closed Appeal No. 01991374.
2On January 30, 1999, complainant withdrew Agency No. 4-C-442-0045-98.
The withdrawal form notes, �[complainant] may use the documentation and
information in this complaint as background information in complaint
4C442008098.�
3The Postmaster referenced in this complaint is not the current Postmaster
of the facility. The record also contains an affidavit from the current
Postmaster. The current Postmaster was not stationed at the facility
during the relevant time, and could provide no clarification to justify
his predecessor's actions.