01995168
11-20-2001
Richard C. Velarde, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard C. Velarde v. United States Postal Service
01995168
11-20-01
.
Richard C. Velarde,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995168
Agency Nos. 4F-926-1175-95; 4F-926-1235-95; 4F-926-0033-97
Hearing Nos. 340-97-3145x; 340-97-3146x; 340-98-3008x
DECISION
Complainant timely initiated an appeal from the agency's May 13,
1999 final decision concerning his equal employment opportunity (EEO)
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. (1994 & Supp. IV 1999) (Title VII). The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE
Complainant alleged he was retaliated against when 1) on October 7, 1996,
the agency issued complainant a seven-day suspension for delay of mail
and use of profanity, and 2) on October 28, 1996, the agency issued
complainant a 14-day suspension for unacceptable conduct (profanity
directed at supervisor).<1>
For the following reasons, the Commission reverses the agency's May 13,
1999 final decision.
BACKGROUND
The record reveals that complainant, a letter carrier at the agency's
Glendora, California facility, filed formal EEO complaints with the
agency on June 5, 1995, July 16, 1995, and January 10, 1997, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC AJ.
Following a hearing, the AJ issued a decision finding discrimination.
The AJ concluded that complainant established a prima facie case
of reprisal discrimination because of the temporal proximity of the
disciplinary actions and complainant's complaint activities.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that agency witnesses asserted that they disciplined complainant because
in the case of the seven day suspension, complainant failed to deliver
a newsletter and in the case of both suspensions, complainant called
his supervisor a profane name.
The AJ further concluded that complainant established that more
likely than not, the reasons provided by the agency were a pretext for
discrimination or retaliation. In reaching this conclusion, the AJ made
extensive findings, well supported by the record, that the complainant's
supervisor was not a credible reporter of events.
The agency's May 13, 1999 final decision rejected the AJ's decision.
In his timely appeal, the
complainant contended that the AJ's decision correctly summarized the
facts and reached the appropriate conclusions of law. The agency did
not present arguments on appeal.
ANALYSIS
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).
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's arguments on appeal, the agency's response,
and arguments and evidence not specifically discussed in this decision,
the Commission REVERSES the agency's May 13, 1999 final decision and
REMANDS the matter to the agency to take remedial actions in accordance
with this decision and the ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. The agency shall determine the appropriate amount of back pay,
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;"
2. The agency shall expunge the record of the October 7, 1996 seven
day suspension and the October 26, 1996 14-day suspension;
3. Within ten (10) calendar days of the date this decision becomes
final, the agency shall give complainant notice of his right to submit
objective evidence in support of his claim for compensatory damages.
This evidence should be submitted within forty-five (45) calendar days
of the date complainant receives the agency's notice. The agency shall
complete the investigation on the claim for compensatory damages within
ninety (90) calendar days of the date this decision becomes final.
Thereafter, the agency shall process the claim for compensatory damages
in accordance with 29 C.F.R. � 1614.108(f).
4. If the agency has not done so, the agency shall consider taking
disciplinary action against the employee(s) responsible for the
discrimination herein. The agency shall report its decision in
its Compliance Report. If the agency has taken or decides to take
disciplinary action, it shall identify the action taken in its Compliance
Report. If the agency decides not to take disciplinary action, it shall
set forth in its Compliance Report 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 Glendora, California 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
__________________
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. (1994 & Supp. IV 1999) 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 privileges of
employment.
The United States Postal Service, Glendora, California, 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, Glendora, California, has been found to
have retaliated against an employee because of his prior filing of Equal
Employment Opportunity complaints and has been ordered to pay back pay
and damages to the employee. The United States Postal Service, Glendora,
California, 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, Glendora, California, 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: _________________________
1 The Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ) adjudicated and found no discrimination on five other issues.
In rejecting the AJ's decision, the agency addressed only those issues
where the AJ found discrimination; similarly, the complainant appealed
only those issues where the AJ found discrimination. This decision only
addresses those issues on which the AJ found discrimination.