07A30030
03-23-2004
Joaquin Carcache, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joaquin Carcache v. United States Postal Service
07A30030
03-23-04
.
Joaquin Carcache,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30030
Agency Nos. 4F-940-0008-99
4F-940-0113-98
Hearing Nos. 370-99-2114X
370-99-2429X
DECISION
Following its November 8, 2002 final order, the agency filed a
timely appeal that 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 bases of his national
origin (Hispanic/Nicaragua) and in retaliation for engaging in prior
EEO activity when he was given an unfavorable evaluation in March 1998,
and found ineligible for the Associate Supervisor Program (ASP) in August
1998.<1> For the following reasons, the Commission REVERSES the agency's
final 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 thorough review of the record
and hearing testimony in its entirety, including consideration of all
statements submitted on appeal, it is the decision of the Commission that
the AJ accurately stated the facts and correctly applied the pertinent
principles of law and that his decision is supported by substantial
evidence in the record. After a careful review of the record in its
entirety, including consideration of all matters submitted on appeal,
the Commission finds that the decision of the AJ finding that unlawful
employment discrimination was proven by a preponderance of the evidence,
is supported by the record.<2>
CONCLUSION
Accordingly, the decision of AJ is AFFIRMED, and the decision of the
agency is REVERSED. The agency is directed to comply with the Order,
below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
A. The agency will place complainant in the next available ASP class.
Upon successful completion of the class, the agency shall retroactively
promote complainant to a supervisory position, effective August 1998,
or to a comparable position.
B. The agency shall determine the appropriate amount of back pay with
interest and all 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."
C. Within thirty (30) days of the date that this decision becomes final,
the agency is directed to pay complainant $2,000 in non-pecuniary
compensatory damages.
D. If he is still employed, the agency shall provide eight (8)
hours of EEO-related training to the individual who served as the
Officer-in-Charge of the Novato Post Office when complainant was given
an unfavorable evaluation in March 1998. The purpose of this training
shall be to instruct the Officer-in-Charge regarding his responsibilities
under Title VII to eliminate discrimination in the federal workplace.
The agency is advised that the Commission does not consider training to
be a disciplinary matter.
E. The agency shall consider appropriate disciplinary action against the
individual who served as the Officer-in-Charge of the Novato Post Office
when complainant was given an unfavorable evaluation in March 1998,
and report its decision to the Commission. 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.
F. Within thirty (30) days of the date that this decision becomes final,
the agency is directed to pay attorney's fees of $1500.00 and costs,
for legal representation of complainant. These payments are for work
through the issuance of the AJ's decision.
G. 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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
Copies of all submissions to the Commission shall be sent to the
complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Novato Post Office 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
____03-23-04______________
Date
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 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 Novato Post Office located in Novato, California
confirms its commitment to comply with these statutory provisions.
The Novato Post Office supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The Novato Post Office was found to have discriminated against an
employee because of his national origin and in retaliation when he was
given an unfavorable evaluation in March 1998, and found ineligible
for the Associate Supervisor Program in August 1998. The Novato Post
Office has been ordered to, among other things, place the employee
in the next available Associate Supervisor Program, and to pay the
employee appropriate back pay, compensatory damages and attorney's fees.
Management was also directed to provide EEO training to the official
who was involved in the discriminatory evaluation.
The Novato Post Office 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 Novato Post Office 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 16141The ASP is a mandatory 16-week training program for
people who want to be supervisors.
2Contrary to the agency's argument, the AJ's reliance on complainant's
testimony and observation of his demeanor, which he found credible, was
sufficient to support the award of compensatory (non-pecuniary) damages
in this matter. See Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002
(July 14, 1992), p. 12.