Mary L. Riles, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 29, 2004
07A30093 (E.E.O.C. Apr. 29, 2004)

07A30093

04-29-2004

Mary L. Riles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mary L. Riles v. United States Postal Service

07A30093

April 29, 2004

.

Mary L. Riles,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 07A30093

Agency No. 4-H-310-0044-01

Hearing No. 110-A1-8469X

DECISION

Following its April 22, 2003 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.<1>

On appeal, the agency requests that the Commission affirm its rejection

of an EEOC Administrative Judge's (AJ) decision awarding $25,000 in

compensatory damages.

Following a hearing, the AJ determined that the agency had discriminated

against complainant on the basis of race (Caucasian) when she was

non-selected for the position of Maintenance Supply Clerk, PS-5. The AJ

ordered the agency to place complainant in the position, with back pay

and benefits, awarded the full attorney's fees and costs requested by

complainant, and awarded non-pecuniary compensatory damages in the amount

of $25,000.<2>

The agency's final order accepted the AJ's finding of discrimination but

rejected the AJ's award of compensatory damages. On appeal, the agency

notes that it accepts all of the relief ordered by the AJ except for

the award of compensatory damages. The agency argues that an award of

$25,000 is excessive based upon the evidence presented by complainant.

Complainant's essential argument in reply is that the AJ's determination

is supported by substantial evidence of record.

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.

This includes findings with regard to compensatory damages. 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.

Upon review of the record, the Commission concludes that the AJ's award

of compensatory damages is supported by substantial evidence of record.

The agency's final order therefore is REVERSED.

ORDER (D0403)

The agency is ordered to take the following remedial action:

Within thirty (30) days of the date on which this decision becomes final,

the agency shall place complainant in the position of Maintenance Support

Clerk, PS-5, at its Columbus, Georgia Post Office, retroactive to the

date of the contested selection, together with back pay and benefits.

Within thirty (30) days of the date on which this decision becomes final,

the agency shall pay complainant $25,000 in compensatory damages.

Within thirty (30) days of the date on which this decision becomes

final, the agency shall pay complainant attorney's fees in the amount

of $28,740 and costs in the amount of $2,005.20.

The agency shall post a notice of the finding of discrimination, as

set forth in the below-entitled paragraph, �Posting Order.�

The agency shall determine the appropriate amount of back pay, with

interest, and 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.�

Within ninety (90) days of the date on which this decision becomes

final, the agency shall provide EEO training regarding rights and

responsibilities under Title VII to those agency officials found to

have discriminated against complainant.<3>

The agency shall consider taking disciplinary action against the agency

officials found to have discriminated against complainant. 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.

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.

POSTING ORDER (G0900)

The agency is ordered to post at its Columbus, Georgia 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

April 29, 2004

__________________

Date

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 that person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions, or privileges of employment.

The United States Postal Service supports and will comply with such

Federal law and will not take action against individuals because they

have exercised their rights under law.

The United States Postal Service has been found to have discriminated

against the individual affected by the Commission's finding. The United

States Postal Service shall place the affected individual in the position

which she was denied on account of unlawful discrimination, together with

back pay and benefits, and shall pay the affected individual's proven

compensatory damages, attorney's fees, and costs. The United States

Postal Service 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 and will

not retaliate against employees who file EEO complaints.

The United States Postal Service 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 1614

1The agency did not receive the Administrative Judge's final amended

decision until March 14, 2003. Accordingly, its appeal filing on April

22, 2003 was timely. See 29 C.F.R. �� 1614.110(a), 1614.402(a).

2The AJ also ordered the agency to restore annual leave used by

complainant to attend a deposition, and to post a notice of the finding

of discrimination.

3The Commission notes that mandated EEO training is not considered to

be disciplinary in nature.