01995661
02-15-2002
Aurelius Houston, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Aurelius Houston, Jr. v. United States Postal Service,
01995661
02-15-02
.
Aurelius Houston, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995661
Agency No. 4E-870-1102-96
Hearing No. 350-97-8059X
DECISION
Aurelius Houston, Jr. (the complainant) timely initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission)
from a final agency decision (FAD) of the United States Postal Service
(agency), concerning his 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.
The issue presented is whether the complainant was discriminated against
on the bases of his race (African American) and reprisal (prior Title
VII activity) when his work hours were changed requiring more custodial
duties on March 11, 1996.
The complainant, at the time of the incidents which gave rise to the
instant complaint, was employed as a Building Maintenance Custodian, PS-4,
at the Clovis, New Mexico Post Office. In approximately June 1995, the
complainant's supervisor (S1), a Hispanic male, changed the complainant
from a day work shift (8:00 a.m. to 5:00 p.m.) to an afternoon work shift
(10:00 a.m. to 7:00 p.m.).<1> In March 1996, S1 changed the complainant
from an afternoon shift (10:00 a.m. to 7:00 p.m.) to an evening shift
(12:00 p.m. to 9:00 p.m.). The complainant was the only permanent
custodial employee who worked in the Gidding Building (Old Facility)
who was required to work the above-mentioned hours. The agency moved
to a new facility in July 1996. The complainant continued to work the
evening schedule until September 1997, when he returned to his original
hours of 8:00 a.m. to 5:00 p.m.
Believing that he was a victim of discrimination, the complainant sought
EEO counseling and subsequently filed a formal complaint on May 21, 1996.
The complainant alleged that he was subjected to disparate treatment
by S1. At the conclusion of the investigation, the agency informed the
complainant of his right to request a hearing before an EEOC AJ, or
alternatively, to receive an immediate final decision from the agency.
The complainant elected the former. As such, the case was forwarded to
the appropriate EEOC District Office and assigned to an AJ.
The AJ found that the complainant had established a prima facie case
of discrimination based on race. According to the AJ, the complainant,
an African American male, produced evidence which established that his
work hours were changed in March 1996 so that he was required to work
after 5:00 p.m. while the two similarly situated non-African American
co-workers, C1 and C2 (each a Hispanic male), were not required to work
as late in the afternoon.<2>
The AJ also found that the agency had articulated legitimate
non-discriminatory reasons for the adverse employment action. In response
to complainant's claim of discrimination, S1 explained that he changed
the complainant's work hours because the complainant needed access to
a vehicle to perform his maintenance duties and the vehicles were not
available until after 2:30 p.m. He indicated that the complainant
was the only individual who was able to repair the �canceling machine�
which was operated between 1:00 p.m. and 8:00 p.m. He reported that the
schedule change provided the complainant with four hours to complete
his custodial duties in the upstairs part of the Gidding Building.
This was important because the complainant could not clean the upstairs
while they were occupied by tenants between 8:00 a.m. and 5:00 p.m.
He testified that he would reconsider a schedule change after the agency
moved to the new facility.
Furthermore, the AJ found that the complainant had proven by a
preponderance of the evidence that the agency's articulated reasons
were a pretext for racial discrimination. The AJ concluded that the
complainant had successfully demonstrated that none of the agency's
articulated reasons were credible. Significantly, the AJ determined
that the weight of the evidence established that access to LLV vehicles
was not the true reason for adjusting the complainant's work hours.
According to the AJ, S1 indicated that the complainant was required to
work between 12:00 p.m. and 9:00 p.m. because he needed access to LLV
vehicles to perform his maintenance duties and the vehicles were not
available until after 2:30 p.m. However, the complainant indicated
in his affidavit that he observed two similarly situated Hispanic
co-workers utilizing LLV vehicles as early as 7:00 a.m. This evidence was
corroborated by credible testimony of complainant's witness, co-worker
C3 (a White female), who indicated that custodians regularly had access
to LLV vehicles in the morning and that she observed C1 and C2 using
LLV vehicles in the mornings between 6:00 a.m. and 12:00 p.m. Finally,
the record showed that the complainant was eventually returned to his
original work schedule in September 1997 and no evidence was presented
which demonstrated that the problem of inaccessibility of LLV vehicles
was solved at that time.
Additionally, the AJ determined that the weight of the evidence indicated
that the repair of the canceling machine was not the true reason for
the adjustment to the complainant's work hours. S1 explained that he
changed the complainant's work hours because the canceling machine was
in operation between 1:00 p.m. and 8:00 p.m. and the complainant was
the only person who was capable of repairing the machine. However,
the record shows that within approximately one month of changing the
complainant's work hours, S1 informed him that he would re-consider a
schedule change after the agency moved to a new facility. S1 testified
that he asked the complainant if he wanted to arrive at work either 4:00,
5:00 or 6:00 a.m. The AJ noted that the agency did not present evidence
which established that the canceling machines were going to be run in
the mornings or that someone other than the complainant was capable
of repairing the canceling machines despite the fact that the agency
intended to continue using the machine at the new facility.
Moreover, the AJ determined that the performance of custodial duties
in the upstairs of the Gidding location was not the true reason for
changing the complainant's work hours. S1 indicated that he needed to
change the complainant's work hours because there were several offices
in the upstairs of the Gidding Building that the complainant need to
have cleaned prior to 8:00a.m. S1 reported that the complainant's
maintenance duties often made it difficult for him to complete his
custodial duties in the Gidding location in a timely manner. However,
the record showed that the agency moved to the new facility in July
1996, and that S1 was no longer required to perform custodial duties
in the upstairs offices of the Gidding Building. Despite this fact,
S1 testified that the complainant was not allowed to return to his
original work schedule until September 1997, over one year after he
stopped performing custodial duties in the Gidding building. The AJ noted
that the agency did not offer an explanation for the delay in returning
the complainant to his original work schedule.
In summary, the AJ determined that the complainant met his burden of
persuasion in an effort to establish pretext. The AJ noted that the
complainant testified credibly that C1 and C2 were previously assigned
to perform the custodial duties in the upstairs of the Gidding Building
prior to the arrival of S1. The complainant pointed out that S1 gave
the upstairs custodial assignment to him while C1 and C2 were given
different assignments. The AJ indicated that the complainant produced
evidence which established that he was the only one of the three custodial
employees that was required to work beyond 5:00 p.m. The record showed
that S1 changed the complainant's work hours for the first time in June
1995 and a second time in March 1996 so that he was required to work in
the evenings while C1 and C2 were allowed to maintain their day schedules.
Finally, the AJ found that the complainant had failed to establish a prima
facie case of discrimination based on reprisal. According to the AJ's
decision, the complainant failed to produce evidence which demonstrated
a causal nexus between his EEO activity in August 1994 and S1's decision
to change his work hours in March 1996. In summary, the AJ found that
the complainant had not demonstrated by a preponderance of the evidence
that the agency's articulated reasons for changing his work hours were
a pretext for discrimination in reprisal for his prior EEO activity.
The agency issued a final decision adopting the AJ's finding of no
unlawful employment discrimination based on reprisal and rejecting
the AJ's findings of unlawful employment discrimination based on race.
This appeal filed by the complainant followed.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as �such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did or did not exist is a factual finding. See Pullman- Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). The Commission has reviewed
the full administrative record and finds that the AJ's findings are
supported by the record.<3> It is the decision of the Commission to
AFFIRM the FAD's finding of no discrimination based on reprisal and to
REVERSE its finding of no discrimination based on race, because the AJ's
ultimate finding, that unlawful employment discrimination was proven by
a preponderance of the evidence, is supported by the record.
REMEDIES
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in the Commission's
Enforcement Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July
14, 1992) (Enforcement Guidance). Briefly stated, the complainant must
submit evidence to show that the agency's discriminatory conduct directly
or proximately caused the losses for which damages are sought. Id. at
11-12, 14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994). The amount awarded should reflect the extent to which
the agency's discriminatory action directly or proximately caused harm
to the complainant and the extent to which other factors may have played
a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary
damages should also reflect the nature and severity of the harm to
the complainant, and the duration or expected duration of the harm.
Id. at 14.
A. Pecuniary
Pecuniary losses are out-of-pocket expenses that are incurred as a result
of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
Past pecuniary losses are losses incurred prior to the resolution
of a complaint through a finding of discrimination, the issuance of
a full-relief offer, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution
of a complaint. Id. at 9. For claims seeking pecuniary damages, such
objective evidence should include documentation of out-of-pocket expenses
for all actual costs and an explanation of the expense, e.g., medical and
psychological billings, other costs associated with the injury caused by
the agency's actions, and an explanation for the expenditure. Id. at
9. The record indicates that the complainant sought medical attention
due to the discrimination. However, we find that complainant has failed
to provide any information regarding such expenses. Moreover, we find
that the complainant has failed to provide evidence of future pecuniary
damages. Therefore, we find that he is not entitled to pecuniary damages.
B. Non-pecuniary
We must now review whether or not the AJ's award of $5,250.00 was
appropriate. In Carle v. Department of the Navy, the Commission explained
that �objective evidence� of non-pecuniary damages could include a
statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could
also submit documentation of medical or psychiatric treatment related to
the effects of the discrimination. Id. Non-pecuniary damages must be
limited to the sums necessary to compensate the injured party for the
actual harm and should take into account the severity of the harm and
the length of the time the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995).
The complainant testified at the hearing that he experienced stress
(mental anguish) as a result of the discrimination. He indicated that he
was edgy, angry, hostile and dissatisfied with his job. He also testified
that he would take stress home from work and fight with his spouse.
Finally, he testified that he experienced a loss of enjoyment of life
because the evening work hours prevented him from participating in social
activities as well as afternoon family dinners. Based on the demeanor of
the witness, the AJ found that the complainant's testimony concerning his
mental anguish and loss of enjoyment of life was credible. The Commission
finds that the AJ properly determined that complainant established a nexus
between the alleged harm and discrimination. The evidence of record
showed that at least some of the complainant's emotional distress was
directly related to his work hours being changed requiring more custodial
duties and he is therefore, entitled to an award of compensatory damages.
Therefore, after consideration of damage awards reached in comparable
cases, the Commission finds that the AJ properly determined that
the complainant is entitled to an award of non-pecuniary damages in
the amount of $5,250.00. See, e.g., Jones v. Department of Defense,
EEOC Appeal No. 01973551 (April 14, 2000) ($9,000.00 in non-pecuniary
damages based on complainant's statements of the interference with
family and marital relations, digestive problems, headaches, anxiety,
sleeplessness, and exhaustion resulting from the agency's discrimination);
Butler v. Department of Agriculture, EEOC Appeal No. 01971729 (April
15, 1999)($7,500.00 in non-pecuniary damages based on complainant's
testimony regarding his emotional distress); and Benson v. Department
of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996) ($5,000
in non-pecuniary damages where complainant was denied promotional
opportunities and consequently experienced stress, skin rashes,
withdrawal, and isolation).
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
AFFIRMS in part and REVERSES in part the agency's final order finding no
discrimination and REMANDS the matter to the agency to take corrective
action in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
If the agency has not already returned the complainant to the 8:00 a.m. to
5:00 p.m. schedule, then within thirty (30) calendar days of the date
this decision becomes final, the agency shall immediately change the
complainant's schedule. The complainant shall also be reimbursed for
reasonable attorney's fees and costs of litigation.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall pay the complainant in the amount of $5,250.00 for
non-pecuniary damages to compensate the complainant for actual harm
caused by the agency's conduct.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall provide training to the management officials who are
responsible for discriminating against complainant in their duties and
obligations under Title VII. The agency shall also consider taking
disciplinary action against these management officials. The agency shall
report its decision. 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.
The agency shall post the attached notice as provided below.
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 of
the agency's investigation into complainant's claim for compensatory
damages, a report on the agency officials' training, and evidence that
the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Clovis, New Mexico 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 (K0501)
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 (R0900)
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 (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
____02-15-02______________
Date
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 the United States
Postal Service, Clovis, New Mexico Post Office.
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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Postal Service, Clovis, New Mexico Post Office 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, Clovis, New Mexico Post Office was
found to have unlawfully discriminated against the individual affected
by the Commission's findings on the basis of race when his work hours
were changed. The agency shall therefore remedy the discrimination
by immediately changing the complainant's schedule and paying proven
compensatory damages. 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 United States Postal Service, Clovis, New Mexico Post Office 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
1The record indicates that complainant also maintained that he was
discriminated against with regard to a change in his work assignment and
hours in June 1995. The Administrative Judge (AJ) found that this claim
was brought to the attention of an EEO counselor in an untimely manner.
Because complainant does not contest this finding on appeal, we will
not address this matter in this decision.
2The record shows that the complainant was a fireman laborer and that
the two comparative employees were custodial laborers. Despite the
difference in job titles, all three individuals were responsible for
cleaning the agency building.
3We also note that the AJ's determination is consistent with our decision
in Sellman v. USPS, EEOC Request No. 05890993 (December 14, 1989).