01976209
08-20-1999
Stephanie A. McCarter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Stephanie A. McCarter, )
Appellant, )
) Appeal No. 01976209
v. ) Agency No. 4B-140-1063-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) 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.
Appellant alleges that she was discriminated against on the bases
of race (African American), color (Black), and sex (female) when she
was terminated. 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 Window Clerk assigned to Station C at an agency facility in Buffalo,
New York. Believing she was discriminated against as referenced above,
appellant sought EEO counseling and subsequently filed a complaint
on July 15, 1996. At the conclusion of the investigation, appellant
requested that the agency issue a final decision.
The FAD determined that appellant failed to establish a prima facie
case of discrimination on any basis when she presented no evidence that
similarly situated individuals not in her protected classes were treated
differently under similar circumstances. The FAD further found that
appellant failed to prove that the agency's legitimate, nondiscriminatory
reason for terminating appellant, namely that she had violated Section
666.2 of the Employee Labor Relations Manual when she misappropriated
postal funds for personal gain, was a pretext for unlawful employment
discrimination.
It is from this decision appellant now appeals. On appeal, appellant
contends that the agency failed to address her allegations that other
employees were treated more favorably than she was. The agency requests
that we affirm its FAD.
Based on a complete review of the record, we are unable to determine
whether appellant was treated less favorably than similarly situated
employees. In her attempt to establish a prima facie case of
discrimination, appellant named six comparative employees. The agency
asserts that the named comparative employees were not similarly situated
to appellant because they either: (1) worked at different stations
and were supervised by different supervisors; (2) were not Clerks;
or (3) committed different infractions. However, we are unable to
ascertain these facts from the record. Accordingly, we find that
the evidence is insufficient to allow a determination on the merits of
appellant's allegations of discrimination under any of the alleged bases.
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).
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.<1>
ORDER
The agency is ORDERED to conduct a supplemental investigation of complaint
no. 4B-140-1063-96, which shall include the following actions:
1. The agency shall ensure that the investigator obtains information
concerning the race, color and gender of all of the Clerks and Supervisors
who worked at the Station C facility while appellant was employed therein
as a Window Clerk, in addition to obtaining similar information about
those employees identified in the record by appellant.
2. The agency shall ensure that the investigator obtains detailed
information concerning the chain of command at the Station C facility and
the circumstances surrounding the agency's decision to place an Acting
Manager at the Station C facility in November 1995. The investigator
shall specifically determine what, if any, disciplinary action was taken
against Clerks and Supervisors who worked at the Station C facility
while appellant was employed therein as a Window Clerk and within one
year after her termination. In addition, the agency shall ensure that
the investigator obtains detailed information concerning what, if any,
disciplinary action was taken against Clerks and Supervisors identified
in the record by appellant.
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 opinion, which may be relevant in
determining the veracity of appellant's 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:
August 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 We note that the agency adequately
documented the investigation into appellant's misappropriation of
funds. Accordingly, that issue requires no further investigation.