01973915
11-24-1998
Eddie R. Ramsey, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Eddie R. Ramsey v. United States Postal Service
01973915
November 24, 1998
Eddie R. Ramsey, )
Appellant, )
) Appeal No. 01973915
v. ) Agency No. 1-H-302-1074-95
) Hearing No. 110-96-8302X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance of the
evidence, that he was discriminated against because of his race (Native
American/Caucasian<1>) when: (1) he was not selected for the position
of Supervisor, Maintenance Operations, EAS-16; and (2) the agency kept
him from participating in the 204-B Acting Supervisor Program.
On appeal, appellant notes that he did submit a Form 991 for the 204-B
Program as well as a Form 13 to notify him of any personnel actions,
and that the agency ignored his repeated requests for discovery documents
and did not provide most of the witnesses who had been approved for the
hearing. In response, the agency notes that it was in compliance with
the requirement that a FAD be issued within 60 days of receipt of the
findings of an administrative judge and that new allegations raised by
appellant on appeal are not properly before the Commission.
At the time of his complaint, appellant was employed by the agency as
a Level 9 Electronics Technician. Believing that he was a victim of
discrimination, appellant sought EEO counseling and later filed a formal
EEO complaint dated December 23, 1995.
The agency complied with all procedural and regulatory prerequisites,
and on February 11, 1997, the EEOC Administrative Judge (AJ) issued a
Recommended Decision (RD) finding discrimination based on race in regard
to both issues, and recommending, among other things, that appellant be
promoted into the EAS-16 Supervisor position. Subsequently, however,
the agency issued its own final decision, rejecting the AJ's RD and
finding no discrimination on the same two issues.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of discrimination.
We note that the AJ was empowered by 29 C.F.R. �1614.109(d)(3) to draw an
adverse inference against the agency for its failure to produce discovery
documents and witnesses approved by the AJ at the pre-hearing, even though
the agency was given three months to do so before the actual hearing
took place. We thus find that the AJ was justified in concluding,
contrary to the agency's contention, that appellant had, in fact,
submitted the required Form 991 and Form 13. Since the AJ found that
appellant was clearly qualified for a 204-B detail, he drew the adverse
inference that appellant was not interviewed for a 204-B detail because
he was not notified of the interview time for discriminatory reasons.
In regard to the EAS-16 Supervisor position, the AJ noted that appellant
held a higher position as a Level 9 Electronics Technician and had the
same experience as a Level 7 Maintenance Mechanic as the selectee (ST).
Therefore, he didn't see the ST's work experience as being that much
more diverse than appellant's, which was one of the reasons given by
the agency for choosing the ST. Another reason given was that the ST
had over a year's supervisory experience gained from a 204-B detail.
Yet we note that appellant would have gained the same experience had he
not been discriminated against in the first instance. Hence, we find that
the AJ was justified in concluding that appellant was also discriminated
against when he was not selected for the EAS-16 Supervisor position.
Finally, as to appellant's request on appeal for damages, while the
AJ noted there was no testimony by appellant at the hearing as to any
pecuniary or non-pecuniary losses, we note in turn that compensatory
damages may be raised at any time in the administrative process, up to and
including the appeal stage. Wilson v. Social Security Administration,
Appeal No. 01945850 (March 7, 1996). As to appellant's request for
punitive damages, however, we also note that Section 102(a)(3) of the
Civil Rights Act of 1991 specifically disallows such damages against a
government entity. Therefore, punitive damages are not available against
the agency, Richardson v. United States Postal Service, EEOC Appeal No.
01930624 (Aug. 9, 1994); Jackson v. United States Postal Service, EEOC
Appeal No. 01923399 (Nov. 12, 1992), aff'd EEOC Request No. 05930306 (Feb.
1, 1993).
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision, the
Commission REVERSES the FAD and enters a finding of discrimination against
the agency, as previously determined by the AJ. The complaint is hereby
REMANDED to the agency for further processing in accordance with this
decision, the following Order, and the subsequent paragraphs preceding the
Statement of Rights on Appeal.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days of the date of receipt of this decision, the
agency shall promote appellant to the position of Supervisor, Maintenance
Operations, EAS-16, or equivalent position, retroactive to the date that
the selectee was so promoted. The agency shall determine the appropriate
amount of backpay (with interest, if applicable) 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 backpay
and benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of backpay
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."
2. The agency is directed to conduct training for relevant agency
management officials who were found to have discriminated against
appellant by not selecting him for the above position and by refusing
to provide him with 204-B supervisory details. The agency shall
address these employees' responsibilities with respect to eliminating
discrimination in the Federal workplace and all other supervisory and
managerial responsibilities under equal employment law.
3. Within sixty (60) days of the date of receipt of this decision, the
agency shall conduct a supplemental investigation in order to determine
the appropriate amount of compensatory damages due appellant because
of the agency's discriminatory nonselection of him for a supervisory
204-B detail and the EAS-16 Supervisor position in (1) above. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).<2>
4. 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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Duluth, GA North Metro Processing and
Distribution Center 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(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.
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. �l6l4.604(c).
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:
Nov 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 agency's Duluth, GA
North Metro Processing and Distribution Center (hereinafter "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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, compensation, promotion,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The facility was found to have discriminated against an employee at
this facility on the basis of race (Native American/Caucasian). The
facility shall remedy the employee affected by the Commission's
finding by retroactively promoting him to the position of Supervisor,
Maintenance Operations, EAS-16, or equivalent position, together with
any backpay and other benefits to which he would have been entitled
absent discrimination. In addition, the facility shall determine the
employee's entitlement to compensatory damages. The facility shall
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 facility 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
1Because appellant was only one-eighth American Indian, the agency noted
in its FAD that he would be considered simply Caucasian for the purpose
of his complaint.
2In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. It based this assessment, inter alia, on a review of the
statutory provisions of the Civil Rights Act of 1991 in relation
to one another and on principles of statutory interpretation which
require statutes to be interpreted as a whole. In particular, the
Commission discussed the meaning of the statute's definition of the
term "complaining party" and the significance of the reference to
the word "action" in Section 102(a). In addition to the specific
reasons set forth in Jackson for this holding, Section 2000e-16(b)
(Section 717) of the Civil Rights Act of 1964 (42 U.S.C. �2000(e)
et. seq.)(CRA) conveyed to the Commission the broad authority in the
administrative process to enforce the nondiscrimination provisions of
subsection (a) through "appropriate remedies." Similarly, in Section
3 of the Civil Rights Act of 1991 (CRA of 1991), Congress refers to
its first stated purpose as being "to provide appropriate remedies for
intentional discrimination and unlawful harassment in the workplace;",
thereby reaffirming that authority. Consequently, it is our view that in
1991, Congress clearly intended to expand the scope of the "appropriate
remedies" available in the administrative process to federal employees who
are victims of discrimination. Moreover, in Section 717(c) of the CRA,
the term "final action" is used to refer to administrative decisions by
agencies or the Commission, as distinguished from the term "civil action,"
used to describe the rights of employees after such final action is taken.
Therefore, the Commission reaffirms the holding therein. See Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998).