01975158
05-26-2000
Maria Schulze, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Maria Schulze v. United States Postal Service
01975158
May 26, 2000
Maria Schulze, )
Complainant, )
) Appeal No. 01975158
v. ) Agency No. 4K200112496
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Maria Schulze (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her 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.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant alleged that she was discriminated
against on the basis of reprisal (prior EEO activity) when she was
issued a Letter of Warning (LOW) for Unsatisfactory Performance on June
17, 1996. For the following reasons, the agency's decision is VACATED
and the complaint is REMANDED.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Window Service Technician, PS-6, at the agency's main Post Office in
Rockville, Maryland. On June 17, 1996, complainant was issued a LOW for
failing, on two occasions, to enclose all of the stamps that customers
had ordered and paid for while filling "Stamps By Mail" (SBM) orders.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on October 6, 1996.
Therein, complainant alleged that her supervisor had engaged in a pattern
of reprisal against her, including continual discipline for alleged
"deficiencies" and the issuance of a LOW on June 17, 1996. On February
12, 1997, the agency notified complainant that her allegation that
she was discriminated against on the basis of a June 17, 1996 LOW, was
accepted for investigation.<2> At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or, alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614, the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of reprisal. Specifically, the agency noted that
the supervisor whom complainant alleged discriminated against her was
unaware of complainant's prior EEO activity. Moreover, the FAD argued
that there was no nexus between the prior EEO activity and the alleged
adverse action because the prior activity occurred on January 5, 1995,
a year and a half before complainant was issued the LOW at issue in
this case.
The agency went on to find that it had articulated a legitimate
non-discriminatory reason for its action; namely, on May 31 and June 3,
1996, complainant failed to properly fill SBM orders and that complainant
had been given discussions regarding her continued unsatisfactory
performance prior to the issuance of this LOW. The agency concluded
that complainant failed to establish that this articulation was a pretext
for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the FAD is fatally flawed for a
number of reasons. First, complainant notes that her supervisor admitted
in her affidavit that she was aware of complainant's prior EEO activity.
Complainant also notes that while her prior EEO activity was in January
of 1995, she did not return to her position until May of 1996 and that
her supervisor immediately began retaliating against her, culminating in
the LOW of June 17, 1996. Therefore, complainant argues, the apparent
extended time period between her prior EEO activity and the alleged
adverse action does not really exist. In fact, complainant argues that
the immediacy of the issuance of the LOW upon complainant's return to her
position, indicates that the motive was retaliatory. Complainant also
argues that because there is no proof in the record that complainant did
not enclose all of the stamps for which the customers paid, the agency's
proffered legitimate non-discriminatory reason is clearly pretextual.
Complainant also alleges that the investigation was "a sham" in that
the investigator did not take affidavits from people who had heard
complainant's supervisor make outrageous comments about complainant, nor
do any investigating into disciplinary actions taken against comparative
employees.
The agency offers no new contentions on appeal and asks that complainant's
appeal be denied.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
finds that complainant established a prima facie case of reprisal.
Despite the agency's contentions to the contrary, complainant's supervisor
(S1) acknowledged that she was aware of complainant's prior EEO activity.
Moreover, it is undisputed that a LOW constitutes an adverse employment
action. The agency argued that complainant failed to establish that there
is a nexus between her prior EEO activity and the alleged adverse action
because the prior activity occurred about a year and a half before the
action at issue. The record establishes that after receiving a letter
of removal from S1 on December 1, 1994, complainant contacted an EEO
counselor in January 1995 and filed a formal complaint alleging race and
sex discrimination on March 21, 1995. While this activity is more than
a year prior to the issuance of the LOW, complainant alleges that she
was only reinstated to her position under S1 in March of 1996<3> and
that as soon as she was reinstated S1 began to retaliate against her.
Although it is not entirely clear from the record when complainant was
reinstated after she was found by an arbitrator to have been unfairly
terminated, the grievance award is dated February 16, 1996. Moreover,
records indicate that complainant received a "refresher" training course
on or around April 1, 1996, including training for filling SBM orders,
after which she was returned to her position under S1.
Based on these records and given that the agency failed to respond
to complainant's claim that the reprisal began as soon as she was
reinstated, we find the agency's dependence on the lengthy time period
between complainant's prior EEO activity and the alleged adverse action to
be misplaced. In fact, we agree with complainant that the issuance of
the LOW so soon after her reinstatement is enough to satisfy her burden
of showing a causal connection between her prior EEO activity and the
action at issue. Therefore, we find that complainant has established
a prima facie case of reprisal.
The agency articulated a legitimate non-discriminatory reason for the
issuance of the LOW. Specifically, S1 noted that she gave discussions
to every employee who made an error in handling SBM orders and that
complainant had been given discussions prior to the issuance of the June
17, 1996 LOW. S1 indicated that the LOW was issued due to complainant's
continued unsatisfactory performance.
Complainant bears the burden of establishing that the agency's articulated
reason is pretextual and that the real reason for the adverse action
was reprisal. After a careful review of the file, we find the record
insufficient to determine whether or not complainant was retaliated
against as alleged, because the agency has failed to fulfill its
responsibility of developing an impartial appropriate factual record on
which complainant can base her case. 64 Fed. Reg. 37,644, 37,656 (1999)
(codified and hereinafter referred to as 29 C.F.R. � 1614.108(b)).
While complainant did not deny S1's contention that S1 had disciplined
complainant for unsatisfactory work performance prior to the LOW,
complainant made several important allegations in her affidavit
that the investigator ignored. Complainant noted that there were
employees who made errors similar to her own, yet were not disciplined
as harshly and were not required to follow the same procedures as she.
Although complainant provided the name of an employee who was aware of
this situation (AC), that employee was not interviewed. Complainant
noted that she was told by another co-worker (BM) that S1 told people
that inquiries made about any files which would show errors made by
window service employees, were not to be honored and that S1 was to be
told who made such inquiries. Complainant provided BM's name to the
investigator and alleged that BM also heard S1 make disparaging remarks
about complainant--perhaps providing direct evidence of reprisal--yet BM
was not interviewed. Complainant also described a conversation which
allegedly occurred between S1 and a T-6 at the Potomac Branch (T6)
who was told he would have complainant's job because complainant would
never be back after her removal. Complainant states that the substance
of this conversation would show S1's retaliatory motive. No affidavit
fromT6 was provided.
Moreover, while the investigative report indicates that no other employee
supervised by S1 has a record of incorrectly filling an SBM order<4>,
S1 stated in her affidavit that she did discover another employee (C1)
who "filled an incomplete Stamps By Mail order" and that she gave him a
discussion about the matter. The discrepancy between S1's statement and
the investigative report's conclusion that there were no comparative
employees is not explored and no testimony from C1 as to whether he
committed an error similar to complainant's and what kind of discipline
he received is provided.
We note that the deficiencies in the investigation may not have convinced
us that this case is deserving of a supplemental investigation, if not
for the specifics of this case. Complainant was reinstated after being
terminated and filing an EEO complaint, the adverse action occurred
soon after her return to work, and complainant named several possible
witnesses to the alleged retaliatory animus of her supervisor. In such
a situation, we judge the agency's responsibility to develop an impartial
and appropriate factual record to be especially acute. Therefore, based
upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
VACATE the agency's final decision finding no discrimination and REMAND
the case to the agency for a supplemental investigation in accordance
with our ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall provide an affidavit from C1, named in S1's affidavit
as an employee to whom S1 gave a discussion about an incomplete Stamps
By Mail order. This affidavit shall describe the discussion given to C1
and the reasons for the discussion, as well as any discipline/discussions
received by C1 between July 1995 and July 1996. C1 will also indicate
whether he has engaged in EEO activity. Documentary evidence of any
discipline received by C1 between July 1995 and July 1996 shall also
be provided.
2. The agency shall provide an affidavit from the individual described
in complainant's affidavit as an "Accountant Clerk for Rockville" (AC).
This affidavit shall describe the conversation mentioned by complainant in
her affidavit concerning the calls from customers who did not receive all
the stamps which they ordered and AC's knowledge that these complaints did
not result in discipline for the clerks responsible for the SBM orders.
AC will provide the names of the clerks in question, if possible.
The agency shall provide personnel records of any discipline received by
any of the clerks named by AC as responsible for incomplete SBM orders.
The agency shall also provide a summary of this information, indicating
the name and supervisor of each employee named, when a complaint
concerning an SBM order was received, and what discipline followed.
3. The agency shall provide an affidavit from the female individual, BM,
mentioned in complainant's affidavit at the end of page 2. This affidavit
will describe any knowledge of S1's attempts to prevent complainant from
establishing she was discriminated against, including specific comments as
to whether S1 indicated that requests to review files revealing mistakes
made by other window clerks in filling SBM orders were not to be honored
and were to be reported to S1. This affidavit will also describe any
statements made by S1, of which BM is aware, concerning S1's feelings
about complainant's prior removal. Furthermore, this affidavit shall
provide information on any discussions or other discipline given to BM
by S1 between July 1995 and July 1996. BM shall also indicate whether
she has engaged in EEO activity. Documentary evidence of any discipline
received by BM between July 1995 and July 1996 shall also be provided.
4. The agency shall provide an affidavit from the male individual
described in complainant's affidavit as a T-6 at the Potomac Branch (T-6).
This affidavit shall describe any conversations between S1 and T-6 that
took place between November 1994 and June 1996, involving complainant's
job and/or removal, S1's alleged statement that complainant would never
return to her job, and S1's desire to give T-6 complainant's job at
the main office in Rockville, Maryland.
5. The agency shall provide a supplemental affidavit from S1.
S1 will testify as to whether she gave C1 any discussions/discipline for
unsatisfactory performance between July 1995 and July 1996, other than the
discussion mentioned in her current affidavit. S1 will also testify as to
whether she told anyone between March 1996 and March 1997 that information
requests regarding errors made by window clerks should not be honored and,
if so, when and why. S1 will also provide more specific information about
what discipline she had issued complainant after she returned to work in
March 1996 and before the June 17, 1996 LOW. This specific information
shall include any documentary evidence that such discipline was given,
the days such discipline was given and the reasons for such discipline.
The supplemental investigation must be completed and a copy sent to
complainant within sixty (60) calendar days of the date this decision
becomes final. Complainant will then have thirty (30) days from receipt
of the supplemental investigative file to provide a rebuttal affidavit.
The agency shall issue a final agency decision within sixty (60) calendar
days of its receipt of complainant's rebuttal affidavit, or within
ninety (90) calendar days of complainant's receipt of the supplemental
investigation file if no rebuttal affidavit is received. A copy of the
agency's notice transmitting the investigative file to the 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
May 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Although the formal complaint alleged a pattern of reprisal which
included discipline for "deficiencies" and the LOW, the Counselor's
report indicated that complainant alleged reprisal based on the LOW.
As noted, this was the issue accepted for investigation and complainant
only describes the situation surrounding the June 17, 1996 LOW in her
affidavit. On appeal, complainant notes that she filed a reprisal claim
due to the LOW.
3 This appears to be the date complainant returned to the workplace,
although complainant gives May 1996 as the date she was returned to her
position under the supervision of S1.
4 The investigator stated that a review of the Mail Loss/Rifling
Reports only revealed claims for losses of SBM orders involving orders
not delivered, rather than the receipt of incomplete orders.