0720070025
07-23-2007
Gerald Olana, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Gerald Olana,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0720070025
Hearing No. 350-2005-00207X
Agency No. 1G-871-0029-04
DECISION
Following its December 11, 2006 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ. For the
following reasons, the Commission REVERSES the agency's final order.
At the time of events giving rise to this complaint, complainant held a
bid position as an automation clerk with a limited duty job description,
at the Albuquerque, New Mexico Processing and Distribution Center.
On November 12, 2004 complainant filed an EEO complaint alleging
that he was discriminated against on the bases of disability, age
(D.O.B. 12/28/53), and in reprisal for prior protected EEO activity
(arising under the Rehabilitation Act) when, beginning April 4, 2004,
the agency refused to acknowledge his medical restrictions.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on August 9, 2006 and issued
a decision on November 1, 2006, finding that complainant was subjected
to disability discrimination and retaliation. The agency subsequently
issued a final order rejecting the AJ's finding that complainant proved
that he was subjected to discrimination as alleged.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
After a careful review of the record, including all arguments submitted
on appeal, we REVERSE the final order and direct the agency to comply
with the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final, and to
the extent it has not already done so, the agency shall do the following:
(1) Pay complainant $30,000.00 in non-pecuniary compensatory damages;
(2) Pay complainant $300.00, for his out-of-pocket expenses for his
medical co-payments for psychiatric and psychological care.
(3) Restore, credit, and reimburse any and all annual leave, sick leave,
and leave without pay, that complainant used from April 9, 2004 through
September 30, 2004. The agency shall determine the appropriate amount
of leave due to complainant, pursuant to 29 C.F.R section 1614.601,
no later than sixty (60) days after the date this decision becomes
final. Complainant shall cooperate in the agency's efforts to compute the
amount of leave due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of leave
due, the agency shall credit and/or pay complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. Complainant may petition for enforcement
for the amount in dispute. The petition for enforcement must be filed
with the agency's EEO Director.
(4) Offer complainant in writing, appropriate and effective reasonable
accommodation in his current position, for his physical impairments.
(5) Take corrective, curative, and preventive action to ensure that
discrimination and retaliation do not recur including, but not limited
to, providing not less than eight hours of live, focused training to the
responsible management official(s). That training is in addition to,
and over and above, any training the official(s) may have had prior to
this decision. This training shall cover the agency's responsibilities
under the Rehabilitation Act and the EEOC's regulations to prevent and
eradicate retaliation and discrimination based on disability, and to be
a "model employer" for disabled employees. Such training shall include
what constitutes a request for reasonable accommodation; how to analyze
whether an employee/applicant is an individual with a disability; and
the agency's obligation to provide reasonable accommodation to disabled
employees and applicants for employment consistent with the Rehabilitation
Act and EEOC regulations, as well as the anti-retaliation provisions of
the Rehabilitation Act.
(6) Consider taking appropriate disciplinary action against the
responsible management officials. The Commission does not consider
training to be disciplinary action. The agency shall report its decision
to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
(7) Provide attorney's fees and costs in the total amount of $7,301.87.
POSTING ORDER (G0900)
The agency is ordered to post at its Albuquerque, New Mexico 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.
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 (S0900)
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. 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 (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
July 23, 2007
__________________
Date
1 Complainant asserts that on April 4, 2004, his managers changed his
shift and moved him to the mail casing area, where he was required to
case mail all of the time. Complainant contends that prior to this
change, he was casing mail part of the time, but that it violated his
restrictions to case mail all of the time. Complainant was assigned to
this work until October 2, 2004.
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0720070025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036