01982530
03-16-1999
Roland E. Starr, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roland E. Starr, )
Appellant, )
) Appeal No. 01982530
v. ) Agency No. 4G-770-7534-96
) Hearing No. 330-97-8177X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
dated January 20, 1998, concerning his 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 alleged he was discriminated against in reprisal for prior
EEO activity when on or about July 25, 1996, his route was abolished.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as a Full-Time City Letter Carrier at the agency's North Shepherd Station,
Houston, Texas Post Office. Believing he was a victim of discrimination,
appellant sought EEO counseling and, subsequently, filed a formal
complaint on October 21, 1996. At the conclusion of the investigation,
appellant was provided a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a Recommended Decision (RD) finding discrimination.
The AJ concluded that appellant established a prima facie case of
reprisal discrimination by showing that he engaged in protected activity,
that on or about July 25, 1996, his route was abolished, and that this
occurred within a short time period of his participation in EEO activity.
Further, the AJ determined that although the Station Manager testified
to the contrary, facts presented at trial indicated that he had some
indication that appellant was involved in EEO activity.
The AJ further concluded that the agency articulated a legitimate,
nondiscriminatory reason for its actions, namely, that there was a route
inspection which revealed that changes needed to be done to the routes
at appellant's work location in order to bring them to the eight (8)
hour target duration. Because of this process, appellant's route was
abolished and divided into other, neighboring routes.
The AJ drew an adverse inference against the agency and thereby found
that appellant successfully met his burden of showing that the agency's
justification for the personnel action was pretext for discrimination.
Initially, the AJ noted that testimony at trial suggested that the changes
implemented by the agency were done in such a way that only the assigned
routes of those employees with prior EEO activity were abolished. The AJ
also determined that the agency failed to provide relevant information
that was requested during discovery. Specifically, based upon testimony
at the hearing, the AJ concluded that in August 1997, appellant sent
the agency a discovery request for documentation which would identify
the method by which the route adjustments were made. The agency never
complied with the discovery request and the documentation was unavailable
at the hearing. The AJ found that without this information, appellant
was unable to effectively cross-examine the witness relied upon by the
agency to show how the route adjustments were made. Accordingly, the
AJ drew an adverse inference against the agency and accepted appellant's
testimony concerning the discriminatory rationale used by the agency in
making the route adjustments. Based on the foregoing, the AJ concluded
that the agency's reasons were a pretext for unlawful reprisal.
On January 20, 1998, the agency issued a FAD rejecting the AJ's RD with
a finding of no discrimination. The agency determined that the AJ
erred in drawing an adverse inference based on its failure to comply
with appellant's alleged discovery request. Specifically, the agency
maintained that it never received such a request, and that appellant was
unable to present sufficient evidence at the hearing proving otherwise.
Absent such evidence, the agency concluded that the AJ's decision
to draw an adverse inference was unjustified. Further, the agency
found that the Station Manager's testimony was credible, and that it
established a legitimate, non-discriminatory reason for the method used
for the route adjustment. Moreover, the agency determined that his
testimony demonstrated that he was unaware of appellant's EEO activity.
As appellant was unable to show that the justification offered by the
agency was pretext for discrimination, the agency determined that he
was unable to meet his burden, and, therefore, it issued a FAD finding
no discrimination.
After a careful review of the record, the Commission finds that
the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. EEOC Regulation 29
C.F.R. �1614.109(d)(3)(i) provides that an AJ may draw an adverse
inference against a party when, without good cause shown, that party
fails to respond fully and in timely fashion to a discovery request.
In the instant case, based on the credibility of the witness testimony
presented at the hearing, the AJ determined that in August 1997,
appellant submitted a discovery request for information pertaining to
the method used in adjusting the routes at his work location. Further,
the AJ determined that this information was necessary to enable appellant
to cross-examine the witness relied upon by the agency in establishing
the method used for the route adjustment. Because this information was
not provided to appellant, the AJ drew an adverse inference against the
agency and determined, as a result, that appellant was able to show
that the agency's justification for the route adjustment was pretext
for discrimination. As the Commission has held that it generally will
not disturb the credibility determination of an AJ where, as here, such
determinations are based on the credibility of the witnesses, we find no
reason to disturb the AJ's finding that the abolishment of appellant's
route was discriminatory. See Esquer v. United States Postal Service,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990). Moreover, EEOC
regulations and Commission precedent provide AJ's with broad discretion in
the conduct of a hearing, including such matters as discovery orders and
the drawing of adverse inferences and other sanctions. See e.g., Ortega
v. United States Postal Service, EEOC Appeal No. 01956818 (February 5,
1998); Malley v. Department of the Navy, EEOC Appeal No. 01951503 (May
22, 1997).
Accordingly, the agency's finding of no discrimination is hereby REVERSED,
and the matter is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall reevaluate the route adjustment at issue in this
complaint to determine if appellant's route should have been abolished.
If the determination is made that appellant's route was improperly
abolished, within forty-five (45) calendar days of the date this decision
becomes final, the agency shall reinstate the route and assign appellant
to it.
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 supporting documentation detailing
the agency's efforts in reevaluating the route adjustment and, if
justified, documentation showing appellant's reassignment to his
prior route.
POSTING ORDER (G1092)
The agency is ORDERED to post at its North Shepherd Station, Houston,
Texas Post Office, 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(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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal OperationsNOTICE 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 the North Shepherd Station,
Houston, Texas Post Office (hereinafter �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 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 facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the basis reprisal
(prior EEO activity) when his route was abolished on or about July
25, 1996. The agency shall therefore remedy the discrimination by
reevaluating the route adjustment, and, if found necessary, reinstating
appellant to his prior route assignment. The 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.
The 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