07a60015
04-06-2006
Donna J. Carnes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna J. Carnes v. United States Postal Service
07A60015
April 6, 2006
.
Donna J. Carnes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A60015
Agency No. 4H-335-0048-03
Hearing No. 150-2003-09548X
DECISION
Following its November 4, 2005 final order rejecting the decision of an
EEOC Administrative Judge's (AJ) finding dated September 16, 2005,<1>
that the agency discriminated against complainant on the basis of sex,
the agency filed an appeal. On appeal, the agency requests that the
Commission affirm its rejection of the AJ's decision that the agency
discriminated against complainant on the basis of sex. For the following
reasons, the Commission REVERSES the agency's final order.
Complainant, previously a Distribution Clerk employed at the agency's
Main Post Office at Brooksville, Florida, filed an EEO complaint with
the agency on November 24, 2002, alleging that the agency discriminated
against her on the bases of national origin (American Indian), sex
(female), disability (carpal tunnel and depression), age (41), and in
reprisal for prior EEO activity when:
On October 3, 2002, a Notice of Removal was issued informing complainant
that she would be removed effective November 15, 2002.
Following a hearing, the AJ found that complainant established a
prima facie case of sex discrimination when complainant received a
notice that she would be removed from her position for violating the
agency's policies regarding time and attendance, while at least one male
employee committing the same violation was not similarly disciplined.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions by stating that complainant had left her duty
station for approximately three hours on July 20, 2002, while still
on the clock, and later was untruthful about her absence. The AJ
concluded that complainant established that more likely than not, the
reasons provided by the agency were a pretext for sex discrimination.
In reaching this conclusion, the AJ found that complainant's supervisor
(S1) had discovered a male employee, E1, was similarly absent (on another
occasion) from his duty station while still clocked in. The AJ found that
S1 reported this to his supervisor, S2, yet E1 was never removed from
his position. The AJ found that there were no negative consequences
for E1 despite E1's misconduct. Accordingly, the AJ found that the
similarly situated male employee received preferential treatment when
he committed the same infraction. The AJ also found that complainant
did not prove discrimination on the bases of national origin, age,
disability, or reprisal.
The AJ awarded complainant $5,000.00 in non-pecuniary compensatory damages
and $360 in costs (photocopying). The AJ also ordered the agency to:
(1) post a notice stating that it had violated EEO laws; (2) provide
the responsible management officials with EEO training; and (3) expunge
from official personnel files all documents referencing complainant's
termination. The AJ found that complainant had been unable to perform
her job due to medical reasons since July 2002 (prior to her termination)
and that complainant had not worked anywhere since July 2002. The AJ noted
that complainant had received workers' compensation from July 2002, to the
date of the AJ's decision. Therefore, the AJ found that complainant was
not entitled to back pay. The AJ ordered the agency to treat complainant
like any other Distribution Clerk on workers' compensation who can no
longer perform their position but may in time be able to work. The AJ
found that complainant did not have an attorney represent her in the
EEO complaint and thus found that no attorney's fees should be awarded.
The agency's final order rejected the AJ's decision finding sex
discrimination, but accepted the portion of the decision finding
no discrimination on the bases of national origin, age, disability,
and reprisal.
We find that on appeal, complainant is not challenging the findings of
no discrimination or the remedies provided by the AJ. Therefore, we
shall not address the AJ's findings of no discrimination on the bases
of national origin, age, disability, or reprisal.
As a preliminary matter, the agency requests on appeal that the Commission
dismiss the instant matter on the grounds that complainant lacks standing
to pursue this action. The agency states that complainant filed for
protection from creditors in bankruptcy, and accordingly, only the
bankruptcy trustee appointed to act in her stead has standing to pursue
an appeal in the instant case. On appeal, complainant responds that
she filed a petition for relief pursuant to Chapter 13 of the Bankruptcy
Code, and accordingly, the Chapter 13 Trustee has �nothing to do� with
her discrimination claim. In support, complainant submits a memorandum
from the Standing Chapter 13 Trustee for the Middle District of Florida,
assigned to her case, dated July 8, 2003, in which the Trustee requests
that complainant �Keep Trustee advised of any lump sum settlement
recovered from Postal Service, workers comp or Federal disability.�
Although the agency argues that it raised this standing argument with the
AJ, the agency also admits that it did not raise the standing argument
with the AJ until after the AJ had issued is Order Entering Judgment on
September 21, 2005. Thus, we find that the AJ properly issued an Order
on November 4, 2005, deciding not to entertain an agency motion filed
after the AJ had issued her decision on the complaint. Regarding the
standing argument on appeal, we find that the agency initiated the
instant appeal, not complainant, and that complainant's standing to
pursue her claim for relief through the EEO process is irrelevant to the
Commission's consideration of the agency's appeal herein. Therefore, we
do not dismiss the instant matter on such grounds. We make no finding
regarding the rights or interests of third parties with respect to the
sums we will direct the agency to pay to complainant. The agency has
not submitted sufficient evidence or argument to show that the matter
should be dismissed.
On appeal, the agency argues that the AJ erred by finding the conduct
of E1 and complainant to be a valid comparison. Rather, the agency
contends that E1 was not similarly situated in all relevant aspects.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We concur with the AJ that substantial evidence supports the AJ's
finding that E1 and complainant were similarly situated regarding the
conduct, time, leave, and attendance standards to which they were held
while employed by the agency and under the ultimate supervision of S1
(first level supervisor) and S2 (second level supervisor). We further
find that E1, a male Distribution Clerk, received no discipline for
his sometimes lengthy absences from his duty station, while complainant
was terminated. Both complainant and E1 reported to S1, both supplied
the agency with leave slips after they were absent from the office,
and both claimed sick leave or Family Medical Leave Act (FMLA) leave.
S1 did not believe that E1's leave slip accurately reflected the hours
he was absent, and similarly, agency officials obtained inconsistent
explanations for complainant's whereabouts and reasons for complainant's
sick leave request when she was asked about her absence. We find that
for purposes of conduct, time, leave, and attendance, complainant and
E1 were similarly situated.<2>
We discern no basis to disturb the AJ's finding of discrimination on the
basis of sex. The findings of fact are supported by substantial evidence,
and the AJ correctly applied the appropriate regulations, policies,
and laws. The agency did not specifically contest any of the remedies
provided by the AJ and we approve those remedies as slightly modified.<3>
Therefore, the Commission REVERSES the agency's final order and we REMAND
the matter to the agency to take corrective action ordered by the AJ,
and as slightly modified herein.
ORDER
The agency is ordered to take the following remedial action:
Within 30 days of the date this decision becomes final, the agency
shall pay complainant non-pecuniary compensatory damages in the amount
of $5,000.00.
Within 30 days of the date this decision becomes final, the agency shall
pay complainant $360.00 for costs.
Within 60 days of the date this decision becomes final, the agency shall
provide at least 8 hours of EEO training, to the relevant management
officials still working for the agency who participated in the unlawful
discrimination.
Within 30 days from the date of this decision, the agency shall expunge
from complainant's personnel file and any other centralized location,
other than its legal files pertaining to this case, any and all documents
which reference, incorporate, or refer to complainant's termination.
Complainant shall be treated as any other Distribution Clerk receiving
workers' compensation benefits, who can no longer perform his or her
position, but may in time be able to work as long as a modified position
exists or can be created specifically within her medical limitations
after reaching MMI (maximum medical improvement) pursuant to the Office
of Workers' Compensation Programs (OWCP) rules and regulations.
The agency shall post, at its Brooksville Post Office, in Brooksville,
Florida, the attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION (after being signed by the Agency's duly
authorized representative) in conspicuous places, including all places
where notices to employees are customarily posted, as specified herein.
Within 60 days of the date this decision becomes final, the agency shall
consider taking disciplinary action against the individual or individuals,
still working for the agency, who were responsible for making the agency's
decision in this matter. If the agency decides to take disciplinary
action, it shall identify it in a compliance report the action taken.
If the agency decides not to take disciplinary action, it shall set
forth in its compliance report the reason(s) for its decision not to
impose discipline.
The agency shall send evidence that they have complied with provisions
1 - 7 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER
The agency is ordered to post at its Brooksville Post Office
in Brooksville, Florida 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 one hundred twenty (120) 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
April 6, 2006
__________________
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 At of 1964 (Title VII),
as amended, 42 U.S.C. � 2000(e) et seq., has occurred at the agency's
Brooksville Post Office in Brooksville, Florida.
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.
This facility was found to have discriminated against complainant on the
basis of sex. The facility was ordered to pay complainant compensatory
damages and costs, train responsible officials, expunge documents
from complainant's files, and consider disciplining responsible agency
officials. This 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
and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and 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.
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1The Order Entering Judgment is dated September 21, 2005.
2The Commission notes that at the time of the hearing, the AJ observed
that S2 was dead and S1 had been separated from the agency.
3We find no need to provide training to the agency's EEO Investigators
for failing to submit to the AJ certain documents after the hearing
was concluded.