Hung P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 21, 2019

0120171054 (E.E.O.C. Feb. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Hung P.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120171054

Hearing No. 471-2014-00120X

Agency No. 1J-483-0036-13

DECISION

On January 27, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 28, 2016,2 final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission finds that the Agency is in compliance with its final order and has fully implemented
the Equal Employment Opportunity Commission’s Administrative Judge’s decision finding
discrimination, and order of make whole relief.

ISSUE PRESENTED

The issue presented is whether the Agency has fully complied with the Administrative Judge’s
decision and has provided make whole relief when it placed Complainant on a Tour other than the
one that he was on before the discrimination.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 The Agency submitted a Final Determination on February 27, 2017, which addressed
Complainant’s non-compliance allegations.
0120171054

2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Distribution Operations, EAS-17 at the Agency’s Detroit P & DC - GWY facility in Detroit,
Michigan. On December 20, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), color (Black),
disability (bi-polar), and reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:

1. On or around July 19, 2013, he was called a “nigga” by his manager;
2. On or around July 19, 2013, he was verbally placed on Emergency Placement in
Off-Duty Status;
3. On or around August 24, 2013, he received a Step A Decision dated August 21,
2013, upholding the Emergency Placement of July 19, 2013;
4. On September 6, 2013, he was issued a Notice of Proposed Letter of Warning in
Lieu of 7-Day Time Off Suspension; and
5. His manager sent him a letter instructing him to return to duty on November 25,
2013, only to notify him to disregard the notice, and he remained off duty.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and
the AJ held a hearing on October 26, 2015, and issued a decision on November 15, 2016. The AJ
found that Complainant established race, color, disability, and reprisal discrimination with respect
to Claims 1, 3, and 4; race, color, sex, disability, and reprisal discrimination concerning Claim 2;
and disability and reprisal discrimination in connection with Claim 5. The Agency subsequently
issued a final order adopting the AJ’s finding.

The AJ ordered the following relief:

- Return Complainant to work in the same position he held prior to being
placed off work in November of 2013.
- Pay Complainant back pay with interest from November of 2013, including
all accrued benefits, lost additional straight time, and foregone TSP
contributions and earnings. The time should be counted as work hours for
FMLA purposes.
- Pay Complainant $250,125.00 in compensatory damages.
- Pay Complainant’s attorney $100,936.77 in fees and costs.
- Train and consider disciplining seven named supervisors and managers if
they remain employed.
- Post a notice.

0120171054

3
After the Agency issued a final order adopting the AJ’s findings and conclusions, Complainant
maintained that the Agency was in non-compliance with the AJ’s Order as will be addressed below.
Complainant also alleged that if the Commission agrees with the Agency that it is compliance with
the AJ’s decision than the AJ erred by not ordering the Agency to restore him to Tour 2 hours with
Saturdays and Sundays off.

CONTENTIONS ON APPEAL

On appeal, Complainant, in pertinent part, contends, that the Agency failed to provide him “make
whole relief.” Specifically, Complainant argues that he was restored to a position on Tour 3 instead
of Tour 2, which was the position that he originally had with his scheduled off days being Saturday
and Sunday. Complainant argues that the AJ’s order indicates that he was to be returned to the
“same position,” that he held in November 2013. He asserts that he worked on Tour 2 in November
2013, so he should have been returned to that Tour. Complainant maintains that being on Tour 3,
has caused a hardship for him. He asserts he is unable to have his daughter for visits on the
weekends since his Tour 3 off days are Sunday and Monday. Complainant argues that he is entitled
to be returned to Tour 2 either because the Agency has not complied with the AJ’s order or the AJ
erred in not providing him with full make whole relief.

In addition to requesting that the Agency immediately restore him to his original work hours and
days off, Complainant seeks damages and attorneys’ fees resulting from this noncompliance. He
argues that the Agency’s actions have impacted his ability to sleep which can adversely impact his
mental health condition, (bipolar disorder). He also is worried and upset by the non-compliance
and maintains that the non-compliance has disrupted his family life and is causing him stress and
worry for which he is entitled to compensation as it arises out of the original finding of
discrimination.

In response, the Agency contends, among other things, that Complainant was aware of the decision
to adjust his schedule to Tour 3, on November 22, 2013, but did not allege this matter as
discriminatory. The Agency also maintains that not only did Complainant not raise the move to
Tour 3 as an allegation, but he requested as damages to be awarded the overtime and nighttime
premium pay he would have only earned as a Supervisor on Tour 3 and was awarded those
damages. The Agency argues that Complainant cannot now argue that he has not been made whole
because he is on Tour 3. The Agency argues that Complainant’s admission that he was transferred
to Tour 3 and the demand for the nighttime pay differential, cannot be reconciled with this current
claim of non-compliance.

ANALYSIS AND FINDINGS

EEOC regulations provide that a final agency action that has not been the subject of an appeal shall
be binding on the parties. 29 C.F.R. § 1614.504(a). The regulations further provide that if a
complainant believes that an Agency has not complied with the terms of the final decision, that he
or she shall so advise the Agency within thirty days of the date on which the complainant knew or
should have known of the non-compliance. Id. If the complainant is not satisfied with the Agency’s
0120171054

4
response, he or she may appeal to the Commission for determination as to whether the Agency is
in compliance with the terms of its final action. 29 C.F.R. § 1614.504(b).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the Agency has fully complied with the AJ’s order and
that the AJ’s order constituted full relief. The record indicates that Complainant unsuccessfully
tried to return to work on November 18, 2013, to his Tour 2 position. On November 22, 2013, he
was reassigned to Tour 3, but was still unable to return to work. Although the AJ’s direction that
Complainant be returned to the position that he held in November 2013, does not specify whether
it was Tour 2 or Tour 3, Complainant requested, and the AJ awarded, remedies that only apply to
a Tour 3 position. Consequently, we find that the Agency, by retroactively offering Complainant
the same position on Tour 3, as of November 2013, complied with the AJ’s order. We also find
that the AJ’s order constituted full make whole relief.

CONCLUSION

Accordingly, we find that the Agency has complied with the AJ’s Order and we AFFIRM the
Agency’s final order. This matter is REMANDED to the Agency in accordance with this decision
and the Order below.

ORDER

To the extent it has not already done so, the Agency is ordered to take the following remedial
actions within one hundred and twenty (120) calendar days of the date this decision is issued:

1. As part of the make whole relief, the Agency is ordered to immediately restore
Complainant back to full duty in the same position as he held in November 2013, when he
was denied the opportunity to return to work.

2. The Agency shall determine and pay Complainant all back pay from the time he was denied
return to work in November 2013 until he resumes full-time work, with interest, plus all
benefits including all leave restored. This must include all holiday leave pay. He must be
restored for all sick leave from October 21-23, 2013. He must be paid all pay for
performance raises issued to his co-workers including the 3% paid in 2014.

3. The restored back pay must be counted toward his FMLA work hours since he was illegally
prevented for working and the opportunity to earn the required 1250 hours to take FMLA.

4. The back-pay award must also include the overtime or T-time pay that he would have the
opportunity to earn if the Agency had not discriminated against him and barred him from
work. Additionally, since the Complainant was transferred to Tour 3, any back-pay award
must include the 8% nighttime pay differential he has not received since he has been on
administrative leave.

0120171054

5
5. The Agency must also make Complainant whole as to the Thrift Saving Plan (TSP)
program. The Agency must pay not only its share of his TSP contributions along with his
contribution, but an amount equal to those monies he has missed out on due to the inability
to invest these monies into TSP investments over the past 3 years since he was barred from
returning to work in November 2013. The amount that the Agency must pay must be based
on the earnings of those funds in which he was investing in at the time he was placed in
administrative status and barred from returning to work.

6. As a remedy for the Complainant emotional harm caused by the Agency’s discrimination,
Complainant is awarded $250,000.00 in non-pecuniary compensatory damages. This
award is comparable to other similar fact cases where compensatory damages were
affirmed by the Commission. The Agency shall also pay Complainant $125.00 in pecuniary
damages for his October 2013, hospitalization.

7. The Agency shall provide training regarding its obligations under Title VII and the
Rehabilitation Act and the prohibition of race, color, disability, sex discrimination and
retaliation for EEO activity to the seven responsible officials as named in the AJ’s decision.
If any of the responsible management officials have left the Agency’s employ, the Agency
shall furnish documentation of their departure date(s).

8. The Agency shall consider taking appropriate disciplinary action against all responsible
management officials still employed by the Agency. The Commission does not consider
training to be disciplinary action. 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. If any of the responsible management officials have left the Agency’s employ,
the Agency shall furnish documentation of their departure date(s).

9. The Agency shall post at its George W. Young Facility in Detroit Michigan, copies of the
attached notice. The notice shall be signed by the Agency’s duly authorized
representatives, 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 take reasonable steps to ensure that said notices are not altered,
defaced or covered by any other material.

10. Attorney’s fees and costs are ordered in the amount of $100,936.77.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
0120171054

6
compliance docket number under which compliance was being monitored. Once all
compliance is complete, the Agency shall submit via FedSEP a final compliance report in the
digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final
report must contain supporting documentation when previously not uploaded, and the Agency
must send a copy of all submissions to the Complainant and his/her representative.

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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
0120171054

7
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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 21, 2019
Date