05980323
10-01-1998
Barbara L. Robertson, Appellant, v. Wiliam J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara L. Robertson v. United States Postal Service
05980323
October 1, 1998
Barbara L. Robertson, )
Appellant, ) Request No. 05980323
) Appeal No. 01956011
v. ) Agency No. 4C440113194
) Hearing No. 220-95-5026X
Wiliam J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION ON RECONSIDERATION
INTRODUCTION
On February 9, 1998, the United States Postal Service (hereinafter
referred to as the agency) timely filed a request for reconsideration
of the decision in Robertson v. United States Postal Service, EEOC
Appeal No. 01956011 (January 5, 1998). EEOC regulations provide that the
Commissioners may, in their discretion, reconsider any previous Commission
decision. 29 C.F.R. �1614.407(a). The party requesting reconsideration
must submit written argument or evidence which tends to establish one
or more of the following three criteria: new and material evidence
is available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons set
forth herein, the agency's request is denied. The Commission, however,
exercises its discretion and reconsiders the previous decision on its
own motion.
ISSUE PRESENTED
The issue presented is whether the agency's request meets any of the
statutory criteria for reconsideration.
BACKGROUND
Appellant filed an EEO complaint alleging race (black) and sex (female)
discrimination when she was not reappointed as a transitional letter
carrier in September 1993. Appellant had been serving a one-year
appointment as a transitional letter carrier at the agency's facility
in Lakewood, Ohio. When appellant's appointment ended in September 1993,
the agency advised her that she would not be reappointed as a transitional
letter carrier.
In March 1993, appellant had learned that she was pregnant with twins and
advised agency officials of same. Because of the "high risk" nature of
her pregnancy, appellant accrued a number of absences from work because
of medical appointments or, at times, her medical inability to work.
Record evidence established that appellant also was under medical
restrictions because of her pregnancy and that she requested and was
given light duty assignments for that reason.
Upon completion of the agency's investigation, a hearing was held before
an EEOC Administrative Judge (AJ). In her decision, the AJ found no
race discrimination but did recommend a finding of sex discrimination
with appropriate remedies. The agency issued a final decision (FAD)
adopting the AJ's finding of no race discrimination but rejecting the
finding of sex discrimination. Appellant appealed from the FAD.
Upon review, the previous decision reversed the FAD. The previous
decision found that the AJ's recommended decision set forth the relevant
facts and properly analyzed the relevant laws, policies, and regulations.
The previous decision noted that despite the opportunity to do so, the
agency had failed to produce evidence that it had treated appellant's
pregnancy-related absences in the same manner that it treated the absences
of similarly situated employees with temporary medical conditions. The
previous decision found that the agency's silence on this issue, in
combination with the direct evidence of pregnancy bias detailed in the
AJ's decision, was sufficient to uphold the AJ's finding of pretext.
In its reconsideration request, the agency contends that the previous
decision erred in reversing the FAD.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
The Pregnancy Discrimination Act provides that for all employment-
related purposes, pregnant employees shall be treated the same as other
employees similarly situated with respect to their ability to work.
See, e.g., Ensley-Gaines v. United States Postal Service, 100 F.3d 1220
(6th Cir. 1996).
The agency contends that appellant failed to establish a prima facie case
of sex discrimination because the comparison employees were not similarly
situated to appellant, i.e., they did not have the same or similar
medical restrictions or the same or similar attendance deficiencies. The
agency further contends that the previous decision failed to address
the agency's legitimate, nondiscriminatory reason for its action, i.e.,
appellant was not reappointed because of her attendance and the light
duty restrictions associated with her pregnancy.
Although the initial inquiry in a discrimination case usually focuses on
whether appellant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Dep't of
the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,
the inquiry shifts from whether petitioner has established a prima
facie case to whether she has demonstrated by a preponderance of the
evidence that the agency's reason for its actions merely was a pretext
for discrimination. Id.; see also United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
The agency asserted that appellant was not reappointed because of her
attendance and her light duty restrictions.
In response, appellant averred that the agency's reasons were a pretext
for sex discrimination. We agree.
The Deciding Official testified that appellant was not reappointed because
of her attendance record and that she was evaluated the same as other
transitional employees with regard to attendance. The Superintendent,
however, testified that he gave 14-day suspensions to those "couple of
people...whose attendance was as close to bad as [appellant's]."<1> The
Commission finds that the agency's decision not to reappoint appellant
was tantamount to removing her. Thus, the discipline which the agency
imposed on appellant because of her attendance was far more severe than
that imposed on other employees with attendance problems.
The Superintendent testified that appellant's light duty restrictions
also were a consideration in the decision not to reappoint her. In her
affidavit, appellant asserted that the agency reappointed a transitional
employee who was on light duty because of a foot injury. The agency
presented no evidence to rebut appellant's assertion or otherwise show
that it did not reappoint other similarly situated employees.
Based on the foregoing, the Commission finds that the previous decision
properly reversed the agency's FAD. Because the agency's request fails to
meet the statutory criteria for reconsideration, the Commission therefore
denies the request.
The Commission, however, reconsiders the case on its own motion to modify
the Order in the previous decision.
A review of appellant's complaint showed that she requested the following
corrective action:
I want to be reinstated and receive all lost pay and benefits. Any and
all other relief available.
Although not addressed in the RD or the previous decision, the
Commission finds that appellant has raised a claim for compensatory
damages. Consequently, the agency shall conduct a supplemental
investigation and issue a final decision regarding appellant's
compensatory damages claim in accordance with the Order below.
CONCLUSION
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
agency's request for reconsideration fails to meet the criteria of 29
C.F.R. �1614.407(c), and the request hereby is DENIED. The Commission,
however, reconsiders the previous decision on its own motion. The decision
in EEOC Appeal No. 01956011 hereby is AFFIRMED, AS MODIFIED.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to offer appellant immediate reinstatement
to a transitional letter carrier position, or its substantial equivalent.
Appellant shall be provided with back pay and benefits, including
seniority, as indicated below. For seniority purposes, appellant's
reappointment shall be considered effective the date she would have been
appointed had it not been for the agency's failure to reappoint her in
September 1993.
(B) The agency shall determine the appropriate amount of back
pay, interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due, and
shall provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits, the
agency shall issue a check to the appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. The appellant may petition for enforcement
or clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled "Implementation of the Commission's
Decision."
(C) The agency is ORDERED to post at its Lakewood, Ohio 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.
(D) The agency shall provide training in the obligations and duties
imposed by Title VII to the agency officials responsible for the actions
at issue.
(E) The agency shall conduct a supplemental investigation on the
issue of appellant's entitlement to compensatory damages, affording
appellant an opportunity to establish a causal relationship between the
discrimination and any pecuniary or non-pecuniary losses.<2> In addition,
appellant shall cooperate in the agency's efforts to compute the amount
of the award due her. Thereafter, the agency shall issue a final
decision on the issue of compensatory damages. 29 C.F.R. �1614.110.
The supplemental investigation and issuance of the final decision must
be completed within 120 calendar days of the date this decision becomes
final. A copy of the final decision must be submitted to the Compliance
Officer, as referenced below.
(F) 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 calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
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.
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 APPELLANT'S RIGHTS
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:
Oct. 1, 1998
Date Frances M. Hart
Executive Officer
1The agency presented no evidence to show that these were not transitional
employees.
2See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5,
1993).