07a40135
03-23-2005
Randall E. Meredith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Randall E. Meredith v. United States Postal Service
07A40135
March 23, 2005
.
Randall E. Meredith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A40135
Agency No. 4H-370-0033-03
Hearing No. 250-2004-00088X
DECISION
Following its September 10, 2004 Notice of Final Action, declining to
implement the decision of an EEOC Administrative Judge finding that
the agency discriminated against complainant, the agency filed the
present appeal concerning complainant's complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant filed a formal complaint dated March 19, 2003, alleging that
he was subjected to discrimination on the bases of race (African-American)
and color (black) when: complainant was not transferred to an open
custodial craft position in the agency's Chattanooga General Processing
and Distribution Center on September 7, 2002. Following the completion
of the investigation of his complaint, complainant requested a hearing
before an EEOC Administrative Judge (AJ) on his complaint.
Complainant's complaint was forwarded to the EEOC's Indianapolis District
Office and assigned to an AJ. A hearing was held on March 18, 2004,
with testimony from complainant and four witnesses. Following the
hearing, the AJ issued a decision finding discrimination. The AJ
found that complainant established a prima facie case of race and color
discrimination in that he was a member of the protected classes and
was treated differently than a non-class member, Person A, a Caucasian,
who was selected for a transfer effective September 7, 2002.
The AJ found the agency's explanation for complainant's non-selection
unpersuasive. The agency stated complainant's non-selection for
transfer was because Person A was top on the priority list; they were
waiting approval from the area office for complainant's transfer;
and complainant's November 2001 request only specified transfer to a
mail handler and not a custodian position. The AJ found the agency's
articulation for not transferring complainant to be unworthy of credence.
The AJ notes that neither the investigative file nor the union agreement
state that getting approval from the area office was necessary to
transfer complainant. Second, the AJ found that complainant could
have been transferred to a mail handler or custodial position had his
initial transfer request been processed. The AJ noted that the agency
failed to produce a credible explanation as to what happened to that
initial transfer request. Third, the AJ stated that had complainant's
transfer request been processed, he would have been number one on the
transfer list.
The AJ noted that assuming arguendo that the agency offered a legitimate
non-discriminatory reason for its actions, complainant presented evidence
to demonstrate pretext. Specifically, the AJ found the testimony of the
Plant Manager inconsistent and unbelievable. The AJ stated there was
no credible evidence presented showing why complainant's first request
was lost, nor was there any credible evidence showing that complainant
never made the request in the first place. The AJ stated that assuming
the first request was lost, complainant filled out another request in the
form of a questionnaire assignment dated May 14, 2001, which would have
taken priority over Person A's October 30, 2001 request. The AJ noted
the agency cannot account for what happened to the May 14, 2001 request.
Based on the totality of the evidence, the AJ found that complainant
established he was subjected to discrimination based on race and color.
The agency issued a Notice of Final Action dated September 10, 2004,
declining to implement the AJ's decision finding discrimination based
on race and color and simultaneously filed the present appeal. In its
appellate brief, the agency argued that the AJ lacked substantial evidence
to support his factual findings that: (1) the agency's proffered reason
it did not transfer complainant prior to Person A because it considered
complainant's request a less senior request for transfer as a custodian
was pretext; (2) the agency's proffered reason it did not transfer
complainant because it needed approval from area human resources was
pretext; and (3) the Plant Manager was not credible.
In response, complainant contends that the AJ correctly summarized
the facts and reached the appropriate conclusions of law. Complainant
requested the Commission uphold the AJ's decision. Neither party has
challenged the remedies provided by the AJ apart from the agency's
challenge to the finding of discrimination.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that agency failed to present evidence to disturb the AJ's credibility
determination as to the Plant Manager's testimony. We discern no basis
to disturb the AJ's decision. We find that the AJ correctly determined
that complainant established his prima facie case of race and color
discrimination, that the agency reasons for its actions were pretextual,
and that the agency's action were motivated by discrimination on the
bases of race and color. The Commission finds no reason to alter the
relief provided by the AJ and we order the agency to comply with the
relief as reprinted below in the Order.
Accordingly, we REVERSE the agency's final action and REMAND the complaint
to the agency for compliance with the Order herein.
ORDER
Within thirty days from the date this decision becomes final, the agency
is Ordered to take the following actions:
Pay complainant compensatory damages in the amount of $6,750.00;
Pay complainant attorney's fees in the amount of $8,250.00;
Provide training in diversity to all the management officials responsible
for this matter;
Ensure the agency will not retaliate against complainant for his
protected activity under Title VII;
Take appropriate measures to ensure that the officials responsible for
the personnel decisions and terms and conditions of employment will
abide by the requirements of all federal equal employment opportunity
laws, and;
Post at its Chattanooga Production and Distribution Center copies of
the attached notice for sixty consecutive days, in a conspicuous place,
including any place where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that the notices are
not altered, defaced, or covered by any other material.
POSTING ORDER (G0900)
The agency is ordered to post at its Chattanooga Production and
Distribution 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.
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
March 23, 2005
__________________
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 Chattanooga
Production and Distribution Center, Chattanooga, Tennessee (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 race
and color. The agency has been ordered to remedy the discrimination by:
providing complainant compensatory damages; paying attorney's fees, and
providing diversity training to all responsible management officials.
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