0120120341
12-07-2012
Brian K. Black, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Brian K. Black,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120120341
Agency No. 4G-700-0105-11
DECISION
On September 22, 2011, Complainant filed an appeal from the Agency's September 9, 2011, final decision concerning his 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency discriminated against Complainant on the bases of race, color, sex, and reprisal for prior protected EEO activity in connection with being charged leave without pay and receiving fewer work hours.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Elmwood Station in New Orleans, Louisiana. From February 2011 to March 2011, Complainant's First Level Supervisor was the 204-B Acting Supervisor, Customer Service (AS1 - African-American, female, Black). Beginning in April 2011, Complainant's First Level Supervisor was the Supervisor, Customer, Service (S1 - unknown, male, unknown). At all times, Complainant's Second Level Supervisor was the Station Manager (M1 - African-American, female, Black).
Leave Without Pay (LWOP)
Complainant submitted annual leave requests for February 26, 2011, February 28, 2011, and March 8, 2011 on PS Form 3971, Request for or Notification of Absence. AS1 approved the leave requests, but Complainant was charged LWOP.
Complainant stated that that he had annual leave available when he submitted his leave requests. Complainant's March 18, 2011 pay stub indicated the following annual leave: (i) 77 hours from 2010; (ii) 30 hours earned in 2011; (iii) 175.14 hours used in 2011; and (iv) a balance of 67.86 hours. Section 512.43 of the Employee and Labor Relations Manual states that if annual leave is approved and the employee has an insufficient leave balance, it is changed to LWOP when the employee's pay is processed.
Work Hours
Complainant had an off-the-job injury. According to medical documentation dated February 2011, Complainant was allowed to deliver mail by truck only and was not allowed to work more than eight hours a day.
In April or May 2011, Complainant submitted a written request for temporary light duty. The physician's statement accompanying the light duty request indicated that Complainant was allowed to deliver mail by curbside delivery only, was allowed to case mail in the office, and was not allowed to work more than eight hours a day.
According to Complainant, the Agency never responded to his light duty request. In addition, Complainant stated that ever since he submitted his light duty requested, he cases his route for 1-1.5 hours a day before management informs him that they have nothing else for him. Further, Complainant stated that he was sent home early on days when carriers not on the overtime desired list were forced to work overtime doing curbside delivery. Complainant submitted to the EEO Counselor unsworn statements from four carriers who had received unwanted overtime for curbside delivery.
The Time and Attendance Collection System reports reflect that Complainant worked the following hours between February 26, 2011 and June 3, 2011: (a) week of February 26, 2011 - 25.59 hours; (b) week of March 5, 2011 - 24 hours; (c) week of March 12, 2011 - 17 hours; (d) week of March 19, 2011 - 14.51 hours; (e) week of March 26, 2011 - 1.50 hours; (f) week of April 2, 2011 - 5.01 hours; (g) week of April 9, 2011 - 6.34 hours; (h) week of April 16, 2011 - 8.43 hours; (i) week of April 23, 2011 - 4.34 hours; (j) week of April 30, 2011 - 7.47 hours; (k) week of May 7, 2011 - 5.92 hours; (l) week of May 14, 2011 - 5.35 hours; (m) week of May 21, 2011 - 5.59 hours; and (n) week of May 28, 2011 - 3.26 hours.
EEO Complaint
On March 27, 2011, Complainant contacted an EEO Counselor. On April 20, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), and reprisal for prior protected EEO activity (instant complaint) when:
1. On February 26, 2011, February 28, 2011, and March 8, 2011, he was charged LWOP instead of annual leave;
2. On multiple dates beginning February 26, 2011, he was told that there was no work for him, was sent home early, and was not provided any hours as a light duty employee;
3. Since initiating the instant complaint, he has received even fewer work hours.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency discriminated against him as alleged.
Among other things, the decision found that Complainant failed to establish that the legitimate, nondiscriminatory reasons articulated by management were a pretext for discrimination. Regarding claim 1, the decision found that Complainant was charged LWOP instead of his approved annual leave because he had run out of earned annual leave, so the system automatically converted his annual leave requests to LWOP until he had regained a positive earned annual leave balance. Regarding claims 2 and 3, the decision found no evidence in the record to contradict M1's testimony that Complainant's light duty request was approved. Moreover, the decision found no evidence in the record to contradict M1's testimony that Complainant could not have delivered parts of other carriers' routes because the facility did not have extra postal vehicles.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency's actions were discriminatory. Citing his annual leave balance on his March 18, 2011 pay stub, Complainant argued that he had annual leave available when he submitted his leave requests. In addition, Complainant argued that management never approved his light duty request. Further, Complainant argued that management had plenty of curbside delivery available and cited the carriers' unsworn statements submitted to the EEO Counselor. Finally, Complainant argued that there was an extra postal vehicle available every day because a carrier would call in sick to work and management would split the absent carrier's routes between other carriers, thereby freeing up the absent carrier's postal vehicle.
In response, the Agency contended that Complainant failed to present any issues on appeal sufficient to warrant further consideration of the asserted claims and requested that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 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").
Adequacy of the Record
An agency 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). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.
Upon review, we find the record to be insufficiently developed for us to determine if the Agency discriminated against Complainant on the bases of race, sex, color, or reprisal for prior protected EEO activity. Specifically, we find that the record contains inadequate documentary and testimonial evidence regarding: (1) the amount of annual leave available to Complainant when he submitted his leave requests; (2) the status of Complainant's light duty request; and (3) the availability of curbside delivery and extra postal vehicles for Complainant to perform any such curbside delivery.
First, the record is unclear as to whether Complainant had annual leave available when he submitted his leave requests. Specifically, Complainant's March 18, 2011 pay stub appears to contain conflicting information regarding how many hours of annual leave he had. The pay stub indicated that Complainant's use of annual leave in 2011 (175.14 hours) exceeded the total of his annual leave carried over from 2010 (77 hours) and earned in 2011 (30 hours). This seems to suggest that Complainant had a negative leave balance. However, the pay stub also indicated a positive balance of 67.86 hours.
In addition, the record contains no testimonial evidence from an Agency employee familiar with Complainant's leave situation. Instead, the record contains testimonial evidence only from AS1, S1, and M1 - none of whom appear to have specific knowledge about Complainant's annual leave or LWOP. For example, AS1 averred that she did not remember that far back, but that she had entered leave into the system based on Complainant's leave requests. Similarly, S1 averred that he had no knowledge about Complainant's LWOP. Moreover, M1 averred that she had no knowledge about Complainant's LWOP, but speculated that if he did not have any annual leave, the system would not allow a supervisor to grant annual leave, which could result in LWOP.
Second, the record is unclear as to whether the Agency approved Complainant's light duty request and, if so, what light duty work he received. Specifically, M1 averred that she sent Complainant's light duty request to the Operations Manager, Customer Service (OM) and that OM's decision was that if work was available, OM would provide work for Complainant - possibly at another station that had all curbside deliveries. The record, however, contains neither documentary evidence of OM's approval of Complainant's light duty request nor testimonial evidence from OM regarding his decision. In addition, AS1 averred that M1 did not tell her whether Complainant's light duty request was approved or disapproved. Further, S1 averred that no light duty had been granted for Complainant. Finally, M1 averred that temporary work was provided to Complainant at the Elmwood Station, but that she had no knowledge of when it occurred.
Third, the record is unclear as to who decided to send Complainant home early. Specifically, AS1 averred that she, following M1's instructions, sent Complainant home after he cased his route. Similarly, S1 averred that he, relying on M1's statement not to provide work, sent Complainant home because there was no work available. In contrast, M1 averred that she did not supervise Complainant directly on a daily basis, did not give out assignments to carriers for the delivery of mail, did not schedule carriers, and did not provide work for carriers. In addition, M1 averred that such work was handled by the First Level Supervisors.
Fourth, the record is unclear as to the availability of curbside delivery and extra postal vehicles for Complainant to perform any such curbside delivery. The record contains unsworn statements from four carriers who describe being forced to work overtime doing curbside deliveries. Despite being aware of individuals who might have information related to the complaint, the EEO Investigator failed to obtain sworn statements from those four carriers. In addition, the record contains no documentary evidence to either corroborate or refute management's testimony that Elmwood Station did not have any extra postal vehicles for Complainant to use. Moreover, we note that absent from the record is any contemporaneous documentation (written communications between AS1/S1 and M1 about curbside delivery, lists of assignments/routes/postal vehicles, etc.) regarding the availability of curbside delivery and extra postal vehicles at Elmwood Station.
Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were discriminatory. Accordingly, we remand this matter back to the Agency to conduct a supplemental investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's complaint. The Agency shall obtain all pertinent evidence to address the complaint including, but not limited to:
a. A sworn affidavit from an Agency employee familiar with Complainant's leave situation (such as someone in Human Resources) explaining in detail the numbers on his March 18, 2011 pay stub and why he was charged LWOP instead of annual leave on February 26, 2011, February 28, 2011, and March 8, 2011;
b. A sworn affidavit from OM explaining in detail his role in approving or disapproving Complainant's light duty request;
c. Any documentary evidence regarding OM's approval or disapproval of Complainant's light duty request;
d. Sworn affidavits from AS1, S1, and M1 explaining in detail their role in sending Complainant home early, such as who made the decision to send him home early, the reason for their decision, etc.
e. Any written communications between management officials, lists of assignments/routes/postal vehicles, or other contemporaneous documentation regarding the availability of curbside delivery and extra postal vehicles at Elmwood Station beginning on February 26, 2011;
f. Sworn affidavits from the four carriers who submitted unsworn statements regarding the availability of curbside delivery; and
g. A rebuttal statement from Complainant after he has had an opportunity to review the requested documents and the sworn affidavits.
2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
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
___12/7/12_______________
Date
2
0120120341
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120341