01A24163
12-16-2003
Karen A. Chiocchi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Karen A. Chiocchi v. United States Postal Service
01A24163
December 16, 2003
.
Karen A. Chiocchi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A24163
Agency No. 4H-335-0348-99
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
REVERSES the agency's final decision.
The record reveals that complainant, a Rural Letter Carrier at the Port
Charlotte, Florida Post Office, filed a complaint of discrimination on
September 30, 1999, alleging that the agency had discriminated against
her on the basis of reprisal for prior EEO activity when, on July 16,
1999, she was given an investigative interview and on July 30, 1999,
she was issued a Letter of Warning (LOW) for alleged unsafe practices.<1>
In terms of remedies, complainant requests that she not be subjected to
additional retaliation, and that all copies of the LOW and investigative
interview be removed from her personnel file.<2>
At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision (FAD). The FAD
dismissed the case as moot on the basis that the LOW had been removed.
Complainant appealed the FAD to the Commission, and we remanded the case
for further processing. See Chiocchi v. United States Postal Service,
EEOC Appeal No. 01A05284 (January 29, 2002). A second FAD (FAD2) found
that complainant was not subjected to retaliation when she was given an
investigative interview and on July 30, 1999, she was issued a Letter
of Warning (LOW) for alleged unsafe practices.
On appeal, complainant restates arguments previously made, and requests
that the Commission find that she was subjected to retaliation.
The agency requests that we affirm FAD2. As an initial matter we note
that, 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).
The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual "goes to the issue of damages, not liability." Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination-whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]''). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998)
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in
a reprisal claim, according with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), complainant may establish a prima facie case of
reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 26, 2000).
The nexus may be shown by evidence that the adverse treatment followed
the protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. See Devereux v. United States Postal
Service, EEOC Request No. 05960869 (April 24, 1997).
We find that in this case, complainant established a prima facie case of
reprisal discrimination. First, we find that complainant engaged in prior
EEO activity on or about October 20, 1998 at which time she identified her
Supervisor, Customer Services (S1) and her Manager, Customer Services (M1)
as the discriminating officials. In the instant complaint, complainant
has again identified S1 and M1 as the discriminating officials. Second,
we find that M1 and S1 had knowledge of complainant's prior EEO activity
at the relevant time. Third, we find that complainant was subjected
to adverse treatment by the agency when she was given the investigative
interview and the LOW. Finally, we find that complainant has established
a nexus between her prior EEO activity and the challenged actions, based
on the temporal proximity (approximately nine months) and complainant's
contention (which was corroborated by several of her co-workers), that
other similarly-situated co-workers, who have not engaged in prior EEO
activity, commit the same safety violation all the time, and do not
receive discipline.
We now turn to the agency to articulate legitimate, nondiscriminatory
reasons for its actions. M1 and S1 state that complainant created a
serious safety issue when she placed empty white tubs in the entryway of
the building, and this is why she was disciplined. M1 asserts that he
and S1, and an Acting Supervisor (A1) viewed a security videotape which
depicted how the entryway got blocked. M1 states that as a result of
this viewing, A1 made the decision to discipline complainant. M1 and S1
deny that they were involved in A1's decision to discipline complainant.
Complainant contends that even if A1 did technically make the decision
to discipline her, he was influenced by M1 and S1 (who were A1's
supervisors), who viewed the video with him. We agree that this is
likely, and we note the statement of A1 that �[M1] did suggest that it
would be a good idea to give [complainant] an investigative interview.�
Report of Investigation (ROI), at 129. Several of complainant's
co-workers submitted affidavits attesting to the fact that empty
tubs are placed in the walkway all the time, and that this is done
because there is limited space with all the mail and other equipment.
They explain that they often have no other choice but to stack empty
equipment wherever there is an available spot. Several co-workers assert
their belief that complainant was �singled out� by management, and that
this was �unwarranted punishment directed solely at [complainant],� while
others who have committed the same safety violation were not disciplined.
Further, several of the co-workers assert that on the date in question
when A1 told complainant she had to move the tubs, complainant had asked
A1 where she should put them, and A1 responded �I don't know.�
Based on the above, we find that complainant has met her burden of
establishing by a preponderance of the evidence, that the agency's
reasons are pretext for retaliation. We note that the fact-finder's
disbelief of the reasons given by the employer together with the elements
of the prima facie case may suffice to show intentional discrimination.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
"In appropriate circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is dissembling to
cover up a discriminatory purpose." Id. We find the evidence of record
sufficient to warrant such an inference. Accordingly, after a careful
review of the record, including all statements submitted on appeal, we
REVERSE the FAD and order the agency to take remedial action pursuant
to the Order below.
ORDER
To the extent that it has not already done so, and within 60 days from
the date this decision becomes final, the agency is ordered to:
Rescind and remove all copies of the Letter of Warning and of the
investigative interview from complainant's personnel file.
Provide EEO training to the individual(s) found to have discriminated
against complainant, regarding their obligations pursuant to Title VII,
with special emphasis on the provision regarding retaliation.
Consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Port Charlotte, Florida 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.
ATTORNEY'S FEES (H0900)
If complainant 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (KO501)
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 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 16, 2003
__________________
Date
1 Specifically, complainant was charged with placing empty tubs onto
a walkway.
2 Complainant makes no request for compensatory damages.