0120080649
04-13-2010
Minnie L. Andrews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Minnie L. Andrews,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120080649
Agency No. 4H300019505
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
October 24, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission VACATES the
agency's final decision.
ISSUE PRESENTED
Whether the agency's supplemental investigation complied with the
Commission's orders in Minnie L. Andrews v. United States Postal Service,
Appeal No. 0120062477 (June 5, 2007).
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a mail processing clerk at the agency's facility in Athens,
Georgia. The record reveals that in a letter dated May 5, 2005, the
agency informed complainant that she was placed on Emergency Off-Duty
Status because she submitted a claim for reimbursement of expenditures
for which she was not entitled to receive reimbursement. The letter
further stated that, based upon a preliminary investigation by the Postal
Inspection Service, retaining complainant in a duty status could result
in a loss of postal funds, and a further decision would be made as to
whether or not complainant would be disciplined.
The record further reveals that in a letter dated June 10, 2005, the
agency notified complainant that she would be removed for "filing a
false claim for reimbursement for expenditures on official business
for pecuniary gain" and "improper conduct and behavior." Exhibit 2k.
The letter stated that complainant submitted a PS Form 1164 claim for
reimbursement for expenditures on official business dated March 2, 2005
in the amount of $40.50 in business expenditures spent while attending
official training on February 4, 2005. The letter further stated that
an Inspection Service investigation found that complainant traveled
to the training as a passenger in the personal car of a co-worker, and
during the investigation, complainant affirmed that did not pay for the
co-worker's gas or incur any travel expenses. Additionally, the letter
stated that the co-worker maintained that she and complainant did not
stop for lunch or dinner and drove directly to and from the training.
The letter concluded that complainant filed the reimbursement claim so
that she could "cheat the Postal Service for your personal gain." Id.
On August 1, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Black), sex (female),
religion (Baptist), color (black), age (40), and in reprisal for prior
protected EEO activity when:
1. On May 2, 2005, the agency placed her in Emergency Off-Duty status;
and,
2. On June 10, 2005, the agency issued her a notice of removal effective
July 15, 2005.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision on February 2, 2006,
pursuant to 29 C.F.R. � 1614.110(b).
In that decision, the agency concluded that complainant failed to
prove that she was subjected to discrimination as alleged because she
failed to show that similarly situated employees outside her protected
classes were treated more favorably than she was treated under similarly
circumstances or that there was a causal connection between her protected
EEO activity and the discipline at issue. The agency further determined
that complainant failed to show that the agency's non-discriminatory
reasons for its actions were pretext for unlawful discrimination.
On March 2, 2006, complainant filed an appeal from the agency's
February 2, 2006, final decision. In a decision dated June 5, 2007, the
Commission determined that the agency's investigation of complainant's
complaint was deficient because the record did not reveal if two White
female employees and three White male employees were paid money that
they were not entitled to receive but treated more favorably than
complainant under similar circumstances. Consequently, the Commission
vacated the agency's final decision and remanded the complaint to the
agency so that it could supplement the record with evidence on the
cited comparators, including copies of the reimbursement forms they
submitted or official documentation reflecting what money was paid to
them; a copy of complainant's disciplinary history; a clear reason why
complainant's discipline was harsher than the less severe discipline
that her comparators received; and, any other information on whether
the named comparators were in fact similarly situated individuals who
were treated more favorably than complainant under similar circumstances.
The agency subsequently conducted a supplemental investigation in
which the investigator obtained additional affidavit statements
from the Supervisor of Distribution Operations (Supervisor) and the
Acting Supervisor of Distribution Operations (Acting Supervisor).
The Supervisor stated that complainant was placed in non-duty status and
removed because she filed a claim for reimbursement to pay for travel
expenses she incurred while attending a training class, but management
later discovered that complainant attended the training as a passenger
in another employee's vehicle. He stated that he was not responsible
for issuing any discipline to the five employees cited by complainant
as comparators because he was not their supervisor during the relevant
time period. However, he also stated that he currently supervises
the three White male comparative employees, and these employees do not
have any prior discipline in their files, which includes 2004 and 2005.
He stated that he does not have access to the personnel files of the
two White female comparators because he does not supervise them.
The Supervisor further stated that, to his knowledge, none of the five
employees were ever accused of making false claims for reimbursement
of monies that did not rightfully belong to them. The Supervisor also
stated that complainant did not have a record of prior discipline,
but she was terminated because of the severity of her infraction.
The Acting Supervisor stated that he supervised the two White females
cited by complainant as comparators. He stated that he searched the
employees' files and discovered that one of the employees was suspended
for seven days in January 2004, and the other employee did not have prior
discipline. The Acting Supervisor stated that the employees did not
have infractions related to receiving money that they were not entitled
to receive or for filing a false claim for reimbursement.
In addition to the two affidavit statements, the supplemental
investigation included an investigative summary; Employee Everything Time
and Attendance Reports for complainant and comparative employees; PS-50
Notification of Personnel Action forms for complainant and comparative
employees; the Collective Bargaining Agreement between the American Postal
Workers Union (APWU), the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO), and the agency; and, the 2004 APWU
Joint Contract Interpretation Manual.
In the final decision that is the subject of the instant appeal, the
agency found that complainant was not subjected to unlawful discrimination
or reprisal. Specifically, the agency determined that complainant failed
to establish a prima facie case of discrimination because her cited
comparators were not similarly situated. The agency further concluded
that complainant failed to prove that the agency's non-discriminatory
explanations were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant maintains that the final decision should be
reversed. Complainant argues that the agency's supplemental investigation
was inadequate because it failed to include the disciplinary record of
the cited comparative employees; a rebuttal affidavit from complainant;
testimony from the five comparators; and, an affidavit from the Plant
Manager who reviewed and concurred with the decision to terminate
complainant. Complainant further contends that the investigative summary
erroneously claims that the Supervisor stated that complainant should
be terminated because he felt that it was risky to retain her because
she had access to agency money, but such testimony is not found in the
Supervisor's affidavit statement. The agency requests that we affirm
its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law").
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, complainant alleged that the agency merely issued Letters of
Demand to two White female employees who fraudulently submitted requests
for reimbursement and were paid money by the agency for money that they
were not entitled to receive. Additionally, complainant alleged that
three male employees also were paid money they were not owed, but only
received Letters of Warning, and in the case of one co-worker, a Seven
Day Suspension.
Upon review, we find that the record remains too inadequately developed
for us to make a determination on the merits of complainant's complaint,
despite our previous order directing the agency to conduct a supplemental
investigation. The Commission's regulations and the Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
require agencies to develop a complete and impartial factual record. See
29 C.F.R. � 1614.108(b); EEO MD-110, Chapter 6 (November 9, 1999). In
addition, the Commission's regulations require any employee of a federal
agency to produce documentary and testimonial evidence as the investigator
deems necessary. 29 C.F.R. � 1614.108(c)(1). In this case, the agency
failed to fulfill its obligation to conduct a thorough investigation
concerning the reasons for placing complainant in Emergency Off-Duty
status and issuing her a letter of removal.
In our previous decision, the Commission ordered the agency to supplement
the record with evidence addressing whether five employees cited as
comparators by complainant submitted reimbursement forms for expenses
that they were not entitled to receive reimbursement. Nevertheless, the
record still does not contain any evidence from which we can determine
whether the comparative employees improperly submitted reimbursement
forms, such as affidavits from the five employees addressing whether or
not they improperly or fraudulently submitted reimbursement forms for
expenses that they did not incur. Moreover, although the Commission
ordered the agency to provide copies of reimbursement forms submitted
by the comparators during the relevant time period, the agency failed
to do so or adequately explain why this crucial documentation is not in
the record.
Further, we note that the Supervisor stated that "to [his] knowledge,
neither of these [comparative] employees was ever officially accused of
making any false claims for reimbursement of monies that did not belong to
them," but the probative value of this statement is undermined by the fact
that he also stated that he was not the comparators' supervisor during
the relevant time period, and the comparators worked on different tours.
Moreover, the Acting Supervisor stated that he supervised three White
male comparators but failed to address the critical issue of whether
these employees ever improperly submitted claims for reimbursement.
Additionally, although the record reveals that a Plant Manager reviewed
and concurred with the Supervisor's decision to terminate complainant, the
record does not contain an affidavit statement from the Plant Manager.
Finally, we note that the Acting Supervisor stated that one of the
employees was suspended for seven days in January 2004, and another
employee never had been disciplined by the agency. However, the record
does not contain any documentary evidence that reveals the disciplinary
history of the previously suspended employee, or any of the comparators.
Because of the aforementioned deficiencies in the record, we find that
the agency must conduct a supplemental investigation. The investigation
must supplement the record with the disciplinary record of the cited
comparative employees; a rebuttal affidavit from complainant; affidavit
statements from the five comparators; and, an affidavit from the Plant
Manager who reviewed and concurred with the Supervisor's decision to
terminate complainant.
CONCLUSION
Upon review of the record, and for the foregoing reasons, it is the
decision of the Commission to VACATE the final agency decision and to
REMAND this complaint for further action consistent with this decision
and the Order of the Commission below.
ORDER
Within 60 days from the date this decision becomes final, the agency
shall conduct a supplemental investigation to include the following:
1. The agency will supplement the record with affidavits from the five
employees that complainant cited as comparators. The agency shall
present affidavit questions to the five employees that specifically
asks the employees to state if they have submitted claims for financial
reimbursement to the agency; the dates on which such claims were made;
the purpose of the claims; if the claims were justified; if they have
made reimbursement requests to the agency that were denied, questioned or
later rescinded; and, the agency's awareness of any questionable claims
they may have made to the agency and the agency's action.
2. The agency will obtain an affidavit from the Plant Manager fully
addressing the agency's reasons for placing complainant in Emergency
Off-Duty status and issuing her a notice of removal.
3. The agency shall include all documentation reflecting the disciplinary
record of the five cited comparators. If disciplinary records
are unavailable for a comparator, the agency shall provide a sworn
statement from personnel or human resource officials fully explaining
why documentation for a particular employee is not in the record.
4. After the agency has acquired the aforementioned supplemental evidence,
the agency shall provide a copy of the supplemental investigation to
complainant and afford her the opportunity to submit a rebuttal affidavit
statement into the record.
5. Thereafter, but no later than 120 days after the date this decision
becomes final, the agency will issue a new final decision along with
appeal rights under 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
_____4/13/10_____________
Date
1 We note that complainant also filed grievances on both claims, and the
grievances were settled on September 27, 2005. The settlement agreement
provided that complainant would return to work without back pay on October
15, 2005, and that she would meet with the Plant Manager to acknowledge
"the wrongdoing."
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0120080649
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080649