0120103381
02-10-2012
Bernard A. Barfi, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Bernard A. Barfi,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120103381
Agency No. 1J-531-0036-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated July 23, 2010, concerning his 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. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
791 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405.
For the following reasons the Commission VACATES the Agency’s final
decision and REMANDS the complaint for further processing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a General Expeditor, PS-07 at the Agency’s Processing
and Distribution Center in Milwaukee, Wisconsin. On March 10, 2010,
Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (Black), sex (male), and
disability (hearing impairment) when since December 21, 2009, his Manager
(RMO) has bypassed him for opportunities to serve as Acting Supervisor.1
In its final decision, the Agency concludes that Complainant
established that he is a person with a disability within the meaning
of the Rehabilitation Act.2 The Agency also concludes that Complainant
identified similarly situated comparison employees outside his protected
status who were provided numerous opportunities to supervise during the
relevant time-frame. However, the Agency also concluded that Complainant
failed to show that RMO’s articulated legitimate, non-discriminatory
reasons for bypassing Complainant for supervisory duties were pretext
or motivated by discriminatory animus.
The Agency only obtained two affidavits – an affidavit from Complainant
and an affidavit from RMO. RMO avers that she began assigning Complainant
to function as Acting Supervisor less frequently because he had been
experiencing personal domestic problems that negatively impacted his
ability to effectively perform as an Acting Supervisor. RMO also
asserts that Complainant "would disappear from the unit and fail to
answer his phone which was the only method of communication [and he]
would submit incomplete reports that were needed to prepare daily mail
conditions reports." RMO further notes that Complainant worked a second
job delivering newspapers and, as a result, was often unavailable to
work as an Acting Supervisor. In addition, RMO asserts that Complainant
had a problem preparing legible reports. She further averred that,
after several months of these types of problems, the decision was made
to train other employees to fill the Acting Supervisor role.
According to Complainant, RMO’s reasons for bypassing him for
supervisory duties were entirely fabricated. Complainant asserts during
the five years prior to RMO’s assignment as his Manager, he worked for
a different Manager who regularly assigned him 204b Acting Supervisor
assignments. As soon as RMO was transferred to his unit, his supervisory
assignments stopped. Complainant disputes any assertion by RMO that
his supervisory skills were below par. Complainant further states that
despite his hearing impairment, he has never had a problem communicating
through the chain of command. In addition, Complainant asserts that he
was always available to work and points to his outstanding leave record
that is documented in the record.3 He also disputes RMO’s assertion
that he was hard to locate while at work.
Complainant states that he performed his Acting Supervisor
responsibilities in a professional manner and never had a problem with
his work or communicating with any employee. Complainant also denies
ever having a problem completing reports or that his reports were ever
illegible. Complainant points to his handwritten notes in the complaint
file as evidence of his clear handwriting style. In addition, he notes
that RMO’s accusations were never brought to his attention (prior to
the filing of his formal EEO complaint), nor was he ever reprimanded.
Complainant also states that when he did hand his reports in to RMO she
would thank him for a job well done.4
In addition, Complainant asserts that RMO was the only Manager that
did not assign him Acting Supervisor duties and that he was frequently
and consistently assigned supervisory duties before and after RMO’s
assignment as his Manager. Complainant also asserts that RMO avoided
communicating with him in a manner that gave him the impression that she
was uncomfortable with his hearing and speech impairment. Specifically,
Complainant states that while he always had direct access to other
Managers via their cell phone numbers, RMO did not give him her cell
number but rather the number to her office where she rarely answered
the calls from Complainant. Complainant also states that during times
they did speak on the phone, RMO appeared uncomfortable and/or impatient
with him.
ANALYSIS AND FINDINGS
EEOC Regulations require that agencies shall develop “an impartial
and appropriate factual record upon which to make findings
on the claims raised by the written complaint.” 29 C.F.R. §
1614.108(b). In addition, the Commissions regulations explain that:
“An appropriate factual record is one that allows a reasonable fact
finder to draw conclusions as to whether discrimination occurred.” Id.
Furthermore, EEOC Regulation 29 C.F.R. § 1614.108(c)(1) provides: “The
complainant, the agency, and any employee of a Federal agency shall
produce such documentary and testimonial evidence as the investigator
deems necessary.”
After a thorough review of the record, we find that the record was
insufficiently developed. The investigator failed to gather any
testimonial and documentary evidence which could potentially corroborate
Complainant’s or RMO’s version of events, and there is nothing in
the record to suggest that it would have been impossible to do so.
Therefore, the Commission remands the matter so that the Agency may
conduct a supplemental investigation by obtaining affidavits from all
persons who might have information that may corroborate either RMO or
Complainant’s assertions, as noted above.
CONCLUSION
The Agency’s decision finding no discrimination is VACATED and we
REMAND the complaint to the Agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The Agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
1. The Agency shall ensure that the investigator compiles evidence
relevant to the assertions of Complainant and RMO set forth above which
shall include but is not limited to: (a) affidavits from Complainant’s
former and current Managers addressing alleged deficiencies of
Complainant’s Acting Supervisor performance, as well as, any
information pertaining to the assertion that RMO was uncomfortable with
Complainant’s hearing impairment; (b) affidavits from Complainant’s
co-workers addressing the alleged deficiencies of Complainant’s
Acting Supervisor performance, as well as, any information pertaining to
the assertion that RMO was uncomfortable with Complainant’s hearing
impairment; (c) any written notes, memoranda or emails from RMO (or
any other supervisor) pertaining to Complainant’s Acting Supervisor
responsibilities; (d) any written notes, memoranda or emails from RMO (or
other supervisor) pertaining to the Acting Supervisor responsibilities of
those similarly situated comparison employees identified by Complainant;
(e) any written document generated by Complainant in the course of
his Acting Supervisor responsibilities; and (f) any written document
generated by those similarly situated comparison employees identified
by Complainant in the course of their Acting Supervisor responsibilities.
2. In addition to the evidence identified above, the Agency shall
ensure that the investigator obtain any other affidavits, records,
and statistics, which may be relevant in determining the veracity of
Complainant’s assertions.
3. In addition to the evidence identified above, the Agency shall ensure
that the investigator obtain any other affidavits, record, and statistics,
which may be relevant in determining the veracity of RMO’s assertions;
4. The Agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. Thereafter, the Agency shall provide Complainant
within thirty (30) calendar days from the date the Agency completes the
supplemental investigation, an opportunity to request a hearing before
an EEOC Administrative Judge. If Complainant does not request a hearing
within thirty (30) days of his receipt of the supplemental investigative
report, the Agency shall take final action consistent with 29 C.F.R. §�
�1614.110(b); and
5. The Agency shall submit a compliance report as referenced immediately
below. This report must include a copy of the supplemental investigative
report and either Complainant’s request for a hearing or the Agency’s
final action.
In accordance with Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at 9-23 (November 9, 1999), the Agency shall
give priority to this remanded case in order to comply with the time
frames contained in this Order. The Office of Federal Operations will
issue sanctions against agencies when it determines that agencies are
not making reasonable efforts to comply with a Commission order to
investigate a complaint.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
February 10, 2012
__________________
Date
1 Complainant originally alleged discrimination beginning on November,
1, 2009. However, the Agency dismissed the portion of Complainant’s
claims pertaining to the opportunities to serve as Acting Supervisor
which occurred between November 1, 2009 and December 20, 2009 since each
by-passed opportunity constitutes separate acts of alleged discrimination
and Complainant’s first contact with an EEO counselor occurred on
February 4, 2010, rendering the dismissed portion of the complaint
untimely. We affirm the Agency’s dismissal and note that Complainant
does not raise this issue on appeal.
2 In the complaint file and on appeal, Complainant no longer asserts
discrimination on the bases of his sex and race. Accordingly, the only
basis at issue herein is Complainant’s disability.
3 The documentary evidence shows that at the relevant time period,
Complainant’s available sick leave totaled 1217.43 hours and his
available annual leave totaled 439.71 hours. In addition, Complainant
averred that he consistently donates sick leave through the Agency’s
leave donor program. Complainant also notes that Acting Supervisors are
rarely awarded overtime, so the Acting Supervisor assignment normally
occurred during regular work hours.
4 Complainant asserts (and the documentary evidence shows) that RMO
assigned him Acting Supervisor duties on only two occasions, whereas the
four identified similarly situated comparison employees were assigned
Acting Supervisor duties on numerous occasions during the same two
month time-frame.
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01-2010-3381
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013