07A30008
04-17-2003
Dennis E. Schneider, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dennis E. Schneider v. United States Postal Service
07A30008
04-17-03
.
Dennis E. Schneider,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30008
Agency Nos. 4F-950-1140-95, 4F-950-1048-96
Hearing Nos. 370-98-X2590, 370-00-X2032
DECISION
Following its April 19, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of reprisal for prior EEO activity when:
(1) complainant was placed on emergency suspension on May 24, 1995 for
using official mail; and (2) on December 11, 1995, complainant was issued
a fourteen day suspension. The agency also requests that the Commission
affirm its rejection of the AJ's order.
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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, we discern no basis to disturb the
AJ's finding of discrimination or the ordered relief. The Commission
finds that the agency failed to meet its burden and establish that
the AJ's determinations were not supported by substantial evidence in
the record. Indeed, the findings of fact are supported by substantial
evidence, and the AJ correctly applied the appropriate regulations,
policies, and laws.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final decision. The Commission hereby finds
that complainant was discriminated against on the basis of reprisal,
and orders the agency to take remedial action in accordance with this
decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The complainant 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 complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
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."
The agency shall rescind and remove all reference to the suspension
at issue from complainant's personnel files. Although complainant did
not work at the agency at the time of the AJ's decision, in the event
that complainant seeks reinstatement with the agency, he shall not be
penalized for the retaliatory discipline he received for use of the
penalty envelopes.
The agency is ordered to post at its Berryessa Station, at the San Jose
Post Office, in San Jose, California facility 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.
Within thirty (30) days of the date this decision becomes final, the
agency shall issue a check to complainant for $25.00 in administrative
costs incurred during the hearing.
Within thirty (30) days of the date this decision becomes final, the
agency shall issue a check to complainant for $8,000.00 in non-pecuniary
compensatory damages.
Complainant is entitled to reasonable official time, and the agency
should determine an appropriate amount and compensate complainant for
the equivalent hours of his own time which he was forced to use when
the agency denied him official time.
The agency shall provide training regarding reprisal under Title VII
to all managers who were involved in the decision to place complainant
on emergency suspension and issue a fourteen day suspension.
The agency shall consider taking disciplinary action against the
management officials identified as being responsible for placing
complainant on emergency suspension and issuing a fourteen day
suspension. 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 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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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
____04-17-03______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.
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, Berryessa Station, at the
San Jose Post Office, in San Jose, California confirms its commitment
to comply with these statutory provisions.
The United States Postal Service, Berryessa Station, at the San Jose
Post Office, in San Jose, California 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, Berryessa Station, at the San Jose
Post Office, in San Jose, California has been found to have discriminated
against an employee when it placed the employee on emergency suspension
and issued the employee a fourteen day suspension. The United States
Postal Service, Berryessa Station, at the San Jose Post Office, in San
Jose, California has been ordered to provide compensatory damages and
backpay to the affected employee and provide training to all managers
who were involved in the disciplinary action. The United States Postal
Service, Berryessa Station, at the San Jose Post Office, in San Jose,
California 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, Berryessa Station, at the San Jose
Post Office, in San Jose, California 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