01974021
03-18-1999
Ian MacConnell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ian MacConnell v. United States Postal Service
01974021
March 18, 1999
Ian MacConnell, )
Appellant, )
)
v. ) Appeal No. 01974021
) Agency No. 1-B-016-1003-95
William J. Henderson, ) Hearing No. 160-95-8714X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted by
the Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether appellant has established that
the agency discriminated against him based on sex (male) and reprisal
(prior EEO activity) when his supervisor refused to remove a suspension
from his personnel file.
BACKGROUND
Appellant received a 14-day suspension for attendance problems in
January 1994 and thereafter filed a grievance challenging the suspension.
The grievance was subsequently resolved by a settlement agreement which
provided that appellant would not be required to serve the suspension,
and that, if his attendance showed "substantial improvement," the
suspension would be removed from his personnel file after one year.
According to appellant's supervisor (the Responsible Official, RO), he
determined at the end of 1994 that appellant's attendance had not improved
to the point where removal of the suspension was justified. The Manager,
Distribution Operations, concurred with that determination.
In early 1995, a union official approached the RO and asked whether he
was going to remove appellant's suspension. According to appellant,
the RO replied, "Hey, this is the same guy that filed [an] EEO on me, why
should I do anything for him?" Appellant's Affidavit at 2. The RO did
not admit to making that statement, but offered the following testimony:
"[Appellant] had filed several EEO cases against me and I want to be
very careful how I handle his problems ... I simply stated that I did
not want to err on the side of fear because of his repeated EEO filings.
I still have a job to do and do not feel that allowing the suspension
to stand is discriminatory." RO's Affidavit at 1.
Appellant filed a formal complaint, and, following an investigation, he
requested an administrative hearing. After appellant's case was assigned
to an administrative judge (AJ) the agency filed a motion for findings
and conclusions without a hearing. Although the AJ did not explicitly
grant this motion, he found that, based on his review of the record,
the issuance of a decision without a hearing was appropriate. In his
recommended decision (RD), the AJ found insufficient evidence to establish
sex discrimination, but concluded that appellant had been retaliated
against. The latter finding was based on the RO's admission that he had
considered appellant's prior EEO activity in deciding not to remove the
suspension from his personnel file. The AJ also found, however, that,
even absent the retaliation, the suspension would not have been removed.
Therefore, although the AJ's relief included training for the RO and
reasonable attorney's fees and costs, it did not include removal of
the suspension. The agency subsequently issued a final decision (FAD)
accepting the finding of no sex discrimination and rejecting the finding
of retaliation. It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We therefore discern no basis for disturbing the
AJ's finding of discrimination.
On appeal, the agency has reiterated several arguments raised in the FAD,
the primary one being that, because the agency was the party that moved
for a decision without a hearing, the AJ abused his authority by ruling
in favor of appellant. We disagree, and note it is not apparent that
the AJ's decision to issue a summary decision was in response to the
agency's motion. In this regard, the AJ had the authority to issue
a summary decision on his own initiative. 29 C.F.R. �1614.109(e)(3).
For that reason, the fact that the agency filed the motion for a summary
decision did not preclude the AJ from issuing such a decision in favor
of appellant.
The agency argues further that the RO's comment does not constitute direct
evidence of retaliation. Contrary to the agency's position, however,
we agree with the AJ and find the RO's comment reveals that appellant's
prior EEO activity was a motivating factor in the decision not to remove
the suspension. Therefore, we find that the AJ properly concluded that,
pursuant to Section 107(a) of the Civil Rights Act of 1991, an unlawful
employment practice had been established.<0> See 42 U.S.C. �2000e-2(m).
The agency also appears to argue that the AJ, in finding direct evidence
of retaliation, was concluding that there were material facts in dispute.
The agency argues that, for that reason, a hearing should have been held.
Although appellant and the RO offered different versions of what was said
by the RO, the AJ found, in effect, that either version was sufficient
to support a finding of retaliation. In this regard, because there is
no dispute that the RO made a comment indicating that he had considered
appellant's prior EEO activity, we find it was appropriate for the AJ
to conclude that there were no material facts in dispute.
Finally, we agree with the AJ's conclusion that, even absent the RO's
improper considerations, the suspension would not have been removed from
appellant's personnel file. Therefore, we find that the appropriate
remedy is for the agency to provide training to the RO and post
a notice.
CONCLUSION
It is the decision of the Commission to REVERSE the agency's final
decision and find appellant has established that he was retaliated
against based on his prior EEO activity.
ORDER
The agency is ORDERED to take the following remedial actions:
The agency shall take whatever actions it deems necessary to ensure that
neither appellant nor any other employee is subjected to retaliation in
the future. The agency shall also provide EEO training for the RO.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Shrewsbury, Massachusetts,
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
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 (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.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by
the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of
this decision becoming final. The agency shall then process the claim
for attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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
this 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:
March 18, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The United States Postal Service, Shrewsbury, Massachusetts, facility,
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The United States Postal Service, Shrewsbury, Massachusetts, facility,
has been found to have improperly considered an employee's prior EEO
activity in deciding not to remove a suspension from his personnel file,
and has been ordered to provide training for the responsible official
and pay reasonable attorney's fees and costs. The United States Postal
Service, Shrewsbury, Massachusetts, facility, will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The United States Postal Service, Shrewsbury, Massachusetts, facility,
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
29 C.F.R. Part 1614
01 The agency also argues that, pursuant to Tanca v. Massachusetts
Department of Employment and Training, 98 F.3d 680 (1st Cir. 1996),
Section 107 does not apply to Title VII retaliation claims.
Notwithstanding that decision, the Commission's position is that Section
107 does apply to Title VII retaliation claims. See Revised Enforcement
Guidance on Recent Developments in Disparate Treatment Theory, EEOC
Notice No. 915.002 (July 7, 1992); Smith v. Department of the Navy,
EEOC Petition No. 03950060 (November 2, 1995).