01965932
10-06-1998
Betty A. Thompson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Betty A. Thompson v. United States Postal Service
01965932
October 06, 1998
Betty A. Thompson, )
Appellant, )
) Appeal No. 01965932
v. ) Agency Nos. 4-P-1112-92,
) 4-P-1134-92, 4-P-1370-93
William J. Henderson, ) Hearing Nos. 280-96-4005X,
Postmaster General, ) 4006X, 4007X
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency violated 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 et seq.; and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
appellant based on physical disability (plantar strain fasciitis), age
(50), sex (female), and reprisal (prior EEO activity) when: (1) on May 16,
1992, she was not selected for the position of Confidential Secretary;
(2) between June and August 1992 she was isolated from other employees;
(3) she was denied work hours in November 1992; and (4) on December 4,
1992, she was issued a Letter of Warning.
BACKGROUND
During the period in question, appellant was employed as a Distribution
Clerk at the Liberty, Missouri, Post Office. Appellant filed three
formal complaints between August 1992 and March 1993 in which she raised
what have been identified as Issues 1 through 4. In addition, appellant
alleged that she was discriminated against when: (5) on May 29, 1992 the
police were called; and (6) on May 30, 1992, she was charged as having
been absent without leave on May 29, 1992.
Following an investigation of these complaints, appellant requested an EEO
administrative hearing and her case was assigned to an administrative
judge (AJ). Because appellant had filed a civil action which was
before a Federal magistrate, the AJ remanded the complaint to the agency
pending the issuance of the magistrate's decision. After the magistrate's
decision was issued, the agency issued a final decision dismissing Issues
1 through 6 under the doctrine of res judicata. Appellant appealed
that decision and we determined that Issues 5 and 6 had been properly
dismissed. Thompson v. U.S. Postal Service, EEOC Appeal No. 01945441
(September 18, 1995). We also found, however, that the dismissal of
Issues 1 through 4 was improper and we remanded them for processing.
These issues were subsequently heard by the AJ in May 1996, and she
issued a recommended decision (RD) dated June 7, 1996.
Regarding Issue 1, the AJ initially found that appellant's supervisor
(the Responsible Official, RO) had committed a per se violation of the
Rehabilitation Act when he filled out appellant's supervisory evaluation
for the Confidential Secretary position (the Position). Specifically,
the RO wrote, "Due to [appellant's] work restrictions placed by Department
of Labor, she cannot be utilized in new assignments and responsibilities."
In finding that this was discriminatory, the AJ noted that the reference
had nothing to do with appellant's ability to perform the duties of
the Position, and that the statement merely constituted "an unnecessary
referral to her medical restrictions without any clear business necessity
or relationship to her performance." As relief, the AJ recommended that
the agency "cease and desist from making such references to the medical
work restrictions of [employees] on such evaluations."
Regarding the actual selection for the Position, the AJ found that,
even absent the RO's discriminatory statement, appellant would not
have been selected. Specifically, the AJ found appellant had not
demonstrated that she was as qualified for the Position as any of the
five individuals who were determined to be the best qualified. In so
finding, the AJ noted that all of these individuals, unlike appellant,
were serving in secretarial positions at the time of the selection. The
AJ also found that the panel members credibly testified that the RO's
discriminatory comment played no part in their deliberations.
With regard to Issue 2, the AJ found that appellant could not establish
a prima facie case of disability discrimination, the primary reason being
that she had not established that she was a "qualified individual with a
disability." The basis for this finding was the AJ's determination that,
because the magistrate had concluded that appellant was not a "qualified
individual with a disability," she was bound by that determination under
the doctrine of res judicata. For reasons that are not apparent, the AJ
did not address the other bases of discrimination raised by appellant.
Issue 3 involves appellant's allegation that she lost two hours of pay
after being misled by the RO regarding what time she should report for
work on November 16, 1992. The AJ found sufficient evidence to conclude
that the RO's actions were retaliatory, but noted that appellant had been
compensated for the two hours in question as a result of a grievance.
For that reason, and upon determining that appellant had presented no
evidence of other losses, the AJ found that appellant was not entitled
to further monetary damages.
Finally, the AJ found appellant had not established that she was
discriminated against with regard to Issue 4. In so finding, the AJ
examined the reasons why appellant was issued the letter of warning (LOW)
on December 4, 1992, i.e., for doing her nails on the clock and failing
to follow instructions, and found that they were credible. Conversely,
the AJ found that appellant's version of what occurred was not credible.
In a final decision (FAD) dated July 11, 1996, the agency adopted the RD
in its entirety. It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
Issue 1
As discussed, although both the agency and the AJ found that the
RO had committed a per se violation of the Rehabilitation Act, they
also concluded that, even absent the RO's discriminatory statement,
appellant would not have been selected for the Position. We agree,
and find that the five applicants determined to be the best qualified
for the Position, including the selectee, were all better qualified
than appellant. Appellant does not, at this point, disagree with
that conclusion. She does argue, however, that she is entitled to an
award of compensatory damages. We disagree, and note that the Civil
Rights Act of 1991 (Pub. L. No. 102-66, 105 Stat. 1071, 1079 (1991))
provides that a complainant is not entitled to compensatory damages
in situations where, although an unlawful employment practice has been
established, the respondent demonstrates that it would have still taken
the challenged action in the absence of the unlawful practice. 42
U.S.C. �2000e-5(g)(2)(B)(ii). Because it is clear that appellant
would not have been selected for the Position even absent the RO's
discriminatory comment, we find that she is not entitled to compensatory
damages with regard to this issue.
Issues 2 and 4
In considering Issue 2, the Commission finds that, even assuming appellant
can demonstrate that she is a "qualified individual with a disability,"
the AJ properly concluded that she had not established disability
discrimination. Moreover, although the AJ did not address the other bases
raised by appellant, we find appellant has not established discrimination
under any of these bases. Specifically, although appellant alleged that
management isolated her from other employees by placing her in the middle
of the workroom floor, both the RO and the postmaster testified that, due
to the size of the facility and the number of employees who work there,
it was virtually impossible to isolate an employee from other employees.
Both individuals also testified that they had not intentionally attempted
to isolate appellant from other employees.
Appellant also objects to the AJ's finding of no discrimination
with regard to Issue 4, and directly challenges aspects of the AJ's
credibility findings. Having carefully reviewed the record, however,
we find that the AJ's credibility determinations are well-reasoned and
should not be disturbed. In this regard, we find that there is sufficient
evidence in the record to conclude that the version of events set forth
in support of the LOW are accurate.
Issue 3
Although the AJ found that appellant had established discrimination with
regard to this issue, she also found that, insofar as appellant had been
compensated for the two hours in question, there was no further relief
to which she was entitled. We disagree with this conclusion. First, it
is not apparent that appellant received an award of interest with regard
to the two hours. In this regard, because the alleged discriminatory
act occurred after November 21, 1991, appellant would be entitled to
interest on this award pursuant to Section 114 of the Civil Rights Act
of 1991. See Ramsey v. Department of the Navy, EEOC Request No. 05940658
(July 27, 1995). Second, although the AJ was correct in finding that
appellant had presented no evidence of other losses related to this
issue, appellant had not requested compensatory damages at the time of
the hearing. Because appellant is now requesting compensatory damages,
and because a finding of discrimination has been made with regard to this
issue, we find that she should be afforded an opportunity to demonstrate
whether she is entitled to such damages. Accordingly, the agency shall
conduct a supplemental investigation which addresses that question.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD's finding of
discrimination with regard to Issues 1 and 3 and its finding of no
discrimination with regard to Issues 2 and 4; and to MODIFY the FAD's
award of relief with regard to Issue 3.
The agency is ORDERED to take the following actions:
1. The agency shall award appellant interest on the two hours of back
pay for the work she missed on November 16, 1992.
2. The agency shall conduct a supplemental investigation to determine
whether appellant is entitled to compensatory damages with regard to
the incident that occurred on November 16, 1992. The agency shall
afford appellant an opportunity to present evidence in support of her
compensatory damages claim.<1> Appellant shall cooperate with the agency
in this regard. Thereafter, the agency shall issue a final decision. 29
C.F.R. �1614.110. The supplemental investigation and issuance of the
final decision must be completed within sixty (60) 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.
3. The agency shall cease and desist making improper references to
employees' medical restrictions on their supervisory evaluations.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Liberty, Missouri, 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 (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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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
this 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (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 06, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 In order to assess the claim, the agency shall request from appellant
evidence of and testimony establishing any pecuniary and non-pecuniary
injury suffered and its link to the agency's retaliatory actions. See
Feris v. Environmental Protection Agency, EEOC Appeal No. 01934828
(August 10, 1995), request to reopen denied, EEOC Request No. 05950936
(July 19, 1996); Carle v. Department of the Navy, EEOC Appeal No.
01922369 (January 5, 1993); Rivera v. Department of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994).