U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anisa U.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120141580 Agency No. 1C371001313 DECISION Complainant filed an appeal from the Agency's February 21, 2014, final decision concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant's position title was Supervisor, Distribution Operations at the Agency's Nashville Processing and Distribution Center in Nashville, Tennessee. Complainant was detailed to a position known as Hiring Coordinator. On May 14, 2013, she was informed by the Manager Distribution Operations (MDO) that she was being reassigned to a position in the "plant" known as Supervisor Automation. Complainant objected to the reassignment because she had difficulty walking and the new position required a substantial amount of walking. On August 29, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (bilateral foot conditions), age (61), and in reprisal for prior protected EEO activity when she was involuntarily reassigned from the Hiring Coordinator position to the Supervisor Automation position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The report of investigation did not contain an affidavit or other testimony from MDO, the management official responsible for the decision to reassign Complainant. Although MDO apparently continued in the employment of the Agency during the period of the investigation, the Agency provides no explanation for MDO's failure to provide evidence. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 subjected her to discrimination as alleged. ANALYSIS AND FINDINGS Upon review, the Commission finds that the Agency's decision, arrived at without a hearing, was not proper because the investigative record is inadequate. EEOC Regulation 29 C.F.R. § 1614.108(b) requires that the Agency develop an impartial and appropriate factual record. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD 110), Ch. 6, § I (Aug. 5, 2015). An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An investigator must be thorough. "This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome." MD 110, Ch. 6, § V.D. "To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigations allow for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames." Id. Because we find the investigative record inadequate for the reasons which follow, we do not reach the ultimate issue of whether discrimination occurred. Here, the investigation failed to acquire information necessary to prove an essential element of Complainant's prima facie case, specifically, evidence of the races of the comparator employees identified by Complainant. Complainant alleges, inter alia, that she was subjected to disparate treatment discrimination on the basis of race when her detail to the Hiring Coordinator position was terminated and she was involuntarily reassigned. According to Complainant, she was told that the reassignment was necessary because all supervisors' details were being terminated. ROI at 75. Later she learned that other supervisors remained on detail after her reassignment was implemented. Complainant cited these other supervisors as comparators to support her disparate treatment discrimination claim. Yet the investigative record contains no information on the races of the other detailed supervisors. Indeed, the Agency cites this lack of evidence concerning one comparator as a reason for finding that Complainant failed to establish a prima facie case. Final Agency Decision at 15. Without information on the protected classes of the detailed supervisors, the record is incomplete. On remand, the Agency will be directed to obtain that information in a supplemental investigation. A further omission from the investigative record is the failure to set forth the Agency's articulated reason for imposing an involuntary reassignment on Complainant. The record is silent on this central question. The manager responsible for implementing the reassignment did not provide an affidavit or any other evidence, despite the investigator's documented efforts to obtain information from him. ROI at 10. Nor is evidence provided on this point by any other Agency witness. The Commission reminds the Agency that it must provide a specific, clear, and individualized explanation for its action so that Complainant is provided with an opportunity to prove that the Agency's explanation was a pretext for discriminatory animus. See Boston v. U.S. Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004). "To accomplish this, the [Agency] must clearly set forth, through the introduction of admissible evidence" the reasons for its action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981). On remand, the Agency will be directed to investigate the reasons for the Agency's actions and collect supporting evidence. For the foregoing reasons, we find the investigative record is inadequate and requires supplementation so that a determination on the merits of Complainant's complaint can be made. See generally, Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011) (inadequate investigation); O'Neill v. Dep't of State, EEOC Appeal No. 0120083597 (Jan. 15, 2009) (inadequate 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 decision and REMAND this matter for a supplemental investigation consistent with our decision and the Order below. ORDER Within forty-five (45) calendar days of the date this decision becomes final, the Agency shall conduct a supplemental investigation of the complaint, consistent with our decision. The supplemental investigatory report shall include, but not be limited to, a statement of the Agency's reasons for the alleged discriminatory action and supporting evidence; and information about the races and other relevant statutorily protected classes of comparator employees identified by Complainant as remaining on detail during the relevant period. If any identified witnesses are no longer available to provide evidence, the Agency shall provide an explanation of that unavailability and obtain information from other Agency personnel who are able to provide relevant evidence. After the investigation is completed, the Agency shall provide Complainant with a reasonable opportunity to provide a rebuttal. The Agency shall issue to Complainant a copy of the supplemental investigative file and also shall notify Complainant of the appropriate rights, unless the matter is otherwise resolved prior to that time. The Agency shall submit a report to the Compliance Officer as directed 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 7/20/2016 Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141580 2 0120141580