01985031
04-30-1999
Joel Harris, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.
Joel Harris v. United States Postal Service
01985031
April 30, 1999
Joel Harris, )
Appellant, )
) Appeal No. 01985031
v. ) Agency No. 4-H-310-1112-96
) Hearing No. 110-97-8159X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region) )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), color (Black), sex
(male) and physical disability (wrist injury), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Appellant alleges he was discriminated against when he was terminated
for failing to qualify for his position. This appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED in PART and REVERSED in PART.
The record reveals that during the relevant time, appellant was
employed as a Part-Time Flexible Clerk Multi-Position Letter Sorting
Machine ("MPLSM") Trainee at the agency's Columbus, Georgia facility.
On October 6, 1995, the agency issued appellant a notice stating that
he would be removed from his position, if he failed to qualify on the
keying portion of his MPLSM training. Prior to removal, the agency and
appellant entered into a Last Chance Agreement stating that appellant had
to successfully qualify for his position within the 32 hours the agency
allotted for additional training. On January 25, 1996, the agency issued
appellant a termination letter effective February 28, 1996.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on April 21,
1996. At the conclusion of the investigation, appellant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding discrimination.
The AJ concluded that appellant established a prima case of race and sex
discrimination regarding his termination. However, the AJ concluded
that appellant failed to establish a prima facie case of disability
discrimination because appellant stated that his wrist condition did not
affect any major life activity. The AJ then concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions, namely:
(1) that appellant repeatedly failed to qualify for the MPLSM position;
(2) that since appellant had not qualified for his current position,
the agency's regulations prohibited the reassignment of an employee
who failed to qualify for his current position; and (3) that even had
appellant qualified for his position, there were no jobs available for
reassignment. In his pretext analysis, the AJ concluded that appellant
had established by a preponderance of the evidence that the agency's
proffered legitimate reasons were pretext for unlawful race and/or sex
discrimination. The AJ found that the evidence showed that the agency
had previously reassigned a similarly-situated female who had also
failed to qualify for her position, and that at the time of appellant's
removal, the agency had vacant positions available for reassignment.
In so finding, the AJ questioned the credibility of certain agency
witnesses that testified to the contrary.
The agency issued its FAD adopting the AJ's findings of no disability
discrimination, and rejecting the AJ's findings of discrimination.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
recommended decision sets forth the relevant facts and properly analyzes
the appropriate regulations, policies and laws. Nothing proffered
by the agency in its FAD or on appeal differs significantly from the
arguments presented at the hearing and given full consideration by the AJ.
Therefore, the Commission discerns no basis upon which to overturn the
AJ's finding of discrimination in this matter. In this regard, the AJ
made specific credibility findings which are entitled to deference due
to the AJ's first-hand knowledge, through personal observation, of the
demeanor and conduct of the witnesses. See Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the FAD in so far as it adopted the AJ's findings
of no disability discrimination. However, we REVERSE the FAD in so far
as it failed to adopt the AJ's findings of discrimination based on race
and sex. The matter is REMANDED for the agency to comply with the terms
of the ORDER below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall take corrective, curative and preventive action to
ensure that discrimination does not recur, including but not limited to
providing training to the responsible official(s) at the Columbus, Georgia
postal facility, in the law of employment discrimination. Within thirty
(30) calendar days of the date the training is completed, the agency shall
submit to the compliance officer appropriate documentation evidencing
completion of such training.
2. The agency shall reinstate appellant to a position within his ability
retroactive to the date when he was discriminatorily removed.
3. The agency shall determine the appropriate amount of back pay
(with interest) and other benefits due appellant, pursuant to 29
C.F.R. s1614.501, 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 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 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."
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 the
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 the
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. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
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:
April 30, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations