01a44325_r
02-27-2006
Michelle Stevens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle Stevens v. United States Postal Service
01A44325
February 27, 2006
.
Michelle Stevens,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44325
Agency No. 4A-117-0097-99
Hearing No. 160-A1-8443X
DECISION
Complainant filed an appeal from an agency's final action dated May 17,
2004, concerning her complaints of unlawful employment discrimination.
The record indicates that complainant filed two complaints, Agency
Nos. 4A-117-0097-99 and 4A-117-0130-99, dated July 9, 1999 and September
29, 1999, respectively, which were consolidated by the agency for
processing. Therein, complainant alleged discrimination based on
race, color, and in reprisal for prior EEO activity when: on May 5,
1999, the Postmaster made a racial remark to her; on May 12, 1999,
the Acting Supervisor relayed a comment made by the Postmaster to her;
on May 15, 1999, she was issued a Letter of Warning; on May 27, 1999,
she was issued a Notice of Seven-Day Suspension; and on July 27, 1999,
she was issued a Notice of Removal.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On March 24, 2003, the AJ issued a decision finding discrimination on
the basis of retaliation. The AJ described the discriminatory issue as a
hostile work environment. The AJ found no race or color discrimination.
The AJ ordered the agency, inter alia, to award complainant back pay due
to the removal (complainant was reinstated pursuant to a grievance), to
expunge the letter of warning, expunge the notice of seven-day suspension,
expunge the notice of removal, and to reimburse any lost wages due to
the suspension. The AJ also ordered that:
[Complainant] is hereby instructed to provide to the undersigned Chief
Administrative Judge a statement of attorney's fees and costs with respect
to the prevailing issues in litigating the above referenced complaint.
Non-attorney representatives are not entitled to any fees related to
this action.
[Complainant] is also entitled to compensatory damages under Title
VII. [Complainant] is instructed to provide evidence through affidavits,
medical records, testimonial statements of witnesses, supporting briefs,
and submissions from all relevant sources on the scope and amount of
compensatory damages, if any, in this complaint.
[Complainant] is instructed to provide this office with the requisite
information and evidence for [paragraphs] 5 and 6 within thirty (30)
calendar days from receipt of this initial Decision. Failure of
[complainant] to provide such information shall be deemed a waiver of
attorney's fees, costs, and compensatory damages. [Complainant] is also
instructed to provide copies of all submissions to this office to the
opposing party within the specified 30 calendar day time frame.
Thereafter, on February 9, 2004, the AJ issued his decision for
compensatory damages and attorney's fees concerning complainant's
consolidated complaint. Specifically, the AJ awarded no compensatory
damages for complainant since she did not submit a request or information
on the amount for compensatory damages. With respect to the amount of
attorney's fees and costs, the AJ noted that complainant was represented
by legal counsel in the instant matter. However, the attorney of record
representing complainant in the subject matter and at her EEO hearing
did not, according to the AJ, submit a statement of attorney's fees
or costs. Thus, the AJ determined that complainant was not entitled
to attorney's fees and costs. On May 17, 2004, the agency adopted the
agency's decision.
On appeal, complainant's attorney of record contends that on April 21,
2003, he wrote to the AJ requesting a 30-day extension in which to provide
the requested information for compensatory damages and attorney's fees.
However, the attorney admits that he never received a written order
granting the requested extension. In response to the attorney's
contentions, the agency states that it has no record of receiving a copy
of the identified extension request.
Initially, the Commission notes that the parties do not dispute
the findings of discrimination or findings of no discrimination.
Furthermore, neither party challenges the remedial relief apart from the
issue of compensatory damages and attorney's fees and costs. Therefore,
the AJ's relief, with slight modifications, shall be made part of the
Order herein.
The Commission agrees with the AJ's determination that complainant
failed to submit to the AJ any evidence to support her claim for
compensatory damages. The Commission also agrees with the AJ's finding
that complainant's attorney of record failed to submit documentation to
support his fees or costs. Complainant has not shown that the AJ ever
received a request for an extension of time to submit evidence regarding
compensatory damages or attorney's fees or costs. There is also no
evidence that the AJ ever granted such a request. Complainant does
not claim that she timely submitted evidence of compensatory damages or
attorney's fees or costs as ordered by the AJ. Therefore, we find that
the AJ properly denied an award of compensatory damages and attorney's
fees and costs.
The agency's decision denying compensatory damages and attorney's fees
and costs is AFFIRMED.
ORDER
To the extent it has not already done so, the agency shall take the
following actions:
Within thirty days of the date this decision becomes final, the agency
shall compensate complainant for all back pay and benefits which she
lost from the effective date of her separation from the agency.
Within thirty days of the date this decision becomes final, the agency
shall expunge from all personnel records kept by the agency the following
documents: the Letter of Warning issued on May 15, 1999; the Notice of
Seven-Day Suspension issued on May 27, 1999; and the Notice of Removal
effective August 18, 1999.
Within thirty days of the date this decision becomes final, the agency
shall reimburse complainant for any lost wages on account of the issuance
of the Notice of Seven-Day Suspension dated May 27, 1999.
The agency shall post at its Bridgehampton Post Office, Bridgehampton,
New York facility a copy of the attached NOTICE TO EMPLOYEES POSTED BY
ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION in accordance with
the provision herein entitled POSTING ORDER.
Within thirty days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the responsible
management officials involved in this case.
The agency shall, within 180 days of the date this decision becomes
final, provide training to the responsible management officials involved
in this case so that they are fully cognizant of their obligations
and duties as supervisors and managers with respect to eliminating
discrimination in the federal workplace and under the equal employment
opportunity laws.
Documentation of compliance with this Order must be sent to the Compliance
Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Bridgehampton Post Office,
Bridgehampton, New York facility 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.
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
February 27, 2006
__________________
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 the agency's
Bridgehampton Post Office, Bridgehampton, New York facility (hereinafter
�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 PHYSICAL OR MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
the individual affected by the Commission's findings on the bases of
reprisal for prior protected EEO activity. The agency has been ordered
to remedy the discrimination by: compensating complainant for all
back pay to which she is entitled, expunging of disciplinary action,
consider taking appropriate disciplinary action against all officials
involved in the case, and providing training to all officials involved
in the case. The facility 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 facility 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.
___________________________
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614