Randall E. Meredith, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 23, 2005
07a40135 (E.E.O.C. Mar. 23, 2005)

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