07a10073
09-11-2002
Maggie Dorsey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maggie Dorsey v. United States Postal Service
07A10073
09-11-02
.
Maggie Dorsey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A10073<1>
Agency No. 1I-630-1054-98
Hearing No. 280-98-4029X
DECISION
On June 5, 2000, the United States Postal Service (agency) issued
its Final Action and Notice of Appeal (Notice) of the decision of
the Administrative Judge (AJ), and, on June 20, 2000, Maggie Dorsey
(complainant) filed a timely appeal from the agency's Notice. These
appeals concern her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. The appeals are timely filed (see 29 C.F.R. �
1614.402(a)) and are accepted in accordance with 29 C.F.R. � 1614.405.
In her formal complaint filed on September 28, 1996, complainant claimed
discrimination based on race (black), sex, and reprisal when (a) she
did not receive a performance award in December 1994 for FY 1994 (race
and sex); (b) the Wheeler Post Office was audited in January 1996, when
she was the Officer-in-Charge (OIC) (reprisal); and (c) she was denied
a safety campaign award in early 1996 (reprisal). Although complainant
initially sought EEO counseling on (a) on December 28, 1994, she did
not receive a Notice of Final Interview (NOFI) until September 27, 1996,
which covered all three claims. Following an investigation, she requested
a hearing, and, on April 20, 2000, the AJ issued a decision finding that
the agency discriminated against complainant based on race and sex with
regard to (a) and no discrimination with regard to (b) and (c). In its
Notice, the agency rejected the AJ's finding of discrimination as to
(a) and accepted her findings for (b) and (c). In her appeal brief,
the complainant supported the AJ's finding and sought reconsideration
of the AJ's award of compensatory damages.
Agency's Appeal: AJ's Decision on the Merits
The AJ found discrimination with regard to (a), the FY 1994 performance
award claim, because the agency failed to articulate a legitimate,
nondiscriminatory reason for not selecting complainant and finding
that complainant demonstrated pretext. With regard to (b) and (c),
complainant's claims based on reprisal, the AJ found that complainant
failed to show that the agency officials involved in the actions were
aware of her prior EEO activity. The AJ concluded that, based on the
criteria enunciated by the agency for a FY 1994 performance award and in
comparison to those who received one, complainant should have received
a performance award. The record shows that, from among 40 candidates,
17 nominees, including complainant, were forwarded to the Postmaster
(PM) for final selection. In December 1994, he awarded 12 bonuses, and,
while he was able to testify to the reasons he chose the 12 selectees,
he could not state the reasons why he did not select complainant, since
he had not retained the nomination forms of those not selected.<2>
On appeal, the agency argued that the PM's assertion that complainant was
not among the best performers for FY 1994, taken with his articulation
of the reasons for his selection decisions and the sex/race breakdown
of the selectees should have been sufficient to demonstrate that the
selections were not based on discrimination. The agency's argument,
however, obviates complainant's right to have "a full and fair opportunity
to demonstrate pretext." Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981). The complainant is entitled to some rationale
for her rejection that provides her with an opportunity to attempt to
carry her burden to demonstrate pretext. Id. It is the agency's burden
to present evidence that "raises a genuine issue of fact as to whether
it discriminated against [complainant] [and] to accomplish this, the
[agency] must clearly set forth, through the introduction of admissible
evidence, the reasons for the [complainant's] rejection." Id. While the
agency presented the reasons for its selections, none of its evidence
suffices to provide the specific, clear, and individualized explanation
required by Burdine to explain to complainant why she was not selected.
We agree with the AJ and find that the agency did not meet its burden.
Relief
The AJ, having found discrimination with regard to the December 1994
performance award, addressed the question of relief for this matter.
She directed the agency to adhere to the Commission's regulations,
to provide equitable relief of $1,000, the amount of the 1994 award,
plus interest, to award appropriate attorney's fees, and to publish
a Notice of violation. As to complainant's claim for compensatory
damages, the AJ found that complainant was not entitled to an award of
compensatory damages. This determination regarding entitlement, however,
was premised upon a misstatement of events, in that, the AJ stated that
complainant initially contacted her physician in March 1995, �when the
audit took place,� thereby concluding that complainant's initial contact
with her doctor was as a result of the audit. AJ's Decision, p. 19.
Since the AJ found no discrimination with regard to the audit claim,
she concluded that complainant had not shown that her depression was a
result of her non-selection for a performance award. See AJ's Decision,
p. 20. In fact, the audit occurred in March 1996, not in March 1995,
as stated by the AJ.
Complainant has filed an appeal in support of the AJ's finding
of discrimination and a motion for reconsideration of the award of
compensatory damages. Because the AJ's error in the date of the audit
led to her finding that complainant was not entitled to compensatory
damages, her decision regarding complainant's claim of compensatory
damages must be reconsidered. For this reason, we remand the issue
of compensatory damages to the AJ. In addition, the AJ rejected
complainant's claim for lost wages and leave restoration on the same
grounds, and we similarly remand this matter to the AJ. To the extent
that complainant is entitled to restoration of wages or leave taken
because of the agency's discriminatory action which she can attribute
to it, we note that such relief is an equitable remedy.
CONCLUSION
Accordingly, the agency's decision is REVERSED, in part, and AFFIRMED,
in part. Determination on complainant's claims for compensatory
damages and equitable relief are remanded to the AJ for consideration
in accordance with this decision. The agency is directed to comply with
the Order, below.
ORDER
The agency is ordered to take the following remedial action:
A. Within 30 days from the date this decision becomes final, the agency
is directed to pay complainant $1,000, plus interest from the date that
the FY 1994 performance awards were paid or December 1, 1994, whichever
is earlier.
B. Within 60 days from the date this decision becomes final, the
agency shall conduct training for the Postmaster and all supervisory and
managerial employees involved in the selection of employees for the FY
1994 performance awards.
C. Within 15 days of the date this decision becomes final, the agency
shall submit to the Hearings Unit of the St. Louis District Office a
request for an Administrative Judge for a determination on the question of
compensatory damages. With this request, the agency shall submit a copy
of the complaint file and this decision. Thereafter, the AJ shall issue
a decision on this matter in accordance with 29 C.F.R. � 1614.109,<3>
and the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110 within 40 days of receipt of the AJ's decision.
D. Within 60 days from the date this decision becomes final, the agency
shall consider appropriate disciplinary action against the Postmaster
and all supervisory and managerial employees involved in the selection
of employees for the FY 1994 performance awards and report its decision
to the Commission. If the agency decides to take disciplinary action,
it shall describe in the compliance report the action taken. If the
agency decides not to take disciplinary action, it shall set forth in the
compliance report the reason(s) for its decision not to impose discipline.
E. 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 verifying
that the corrective action has been implemented. A copy shall be sent
to complainant and her attorney/representative, if any.
POSTING ORDER (G0900)
The agency is ordered to post at its Wheeler Station 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 (R0900)
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 (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
____09-11-02______________
Date
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 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 privilege of
employment.
The United States Postal Service, Wheeler Station, supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under the law.
It has remedied the employee affected by the Commission's finding of
discrimination based on race and sex when the complainant was not selected
for an award by directing the agency to comply with the Commission's
regulations concerning processing of EEO complaints, awarding monetary
relief, ordering EEO training for managers, requiring reconsideration
of compensatory damages and equitable relief, posting this notice, and
awarding attorney's fees. The United States Postal Service, Wheeler
Station, will ensure that officials responsible for personnel decisions
and award selections will abide by the requirements of all federal equal
employment laws and will not subject employees to discrimination with
regard to awards.
The United States Postal Service, Wheeler Station, 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 participated in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.
1This matter was re-docketed from EEOC Appeal No. 01A04675, which
was closed.
2The PM would have been notified of complainant's complaint after
September 1996 and by then had already disposed of these documents.
We note that complainant had sought EEO counseling on December 28, 1994,
with regard to this issue and that the agency did not issue the NOFI
until September 27, 1996. As noted by the AJ, the agency's delay was
a violation of EEOC regulations. 29 C.F.R. � 1614.105(d).
3The AJ will apply this regulation to decide whether a hearing is
appropriate.