01981310
03-19-1999
William E. Richards, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
William E. Richards, )
Appellant, )
)
v. ) Appeal No. 01981310
) Agency No. 4C-442-1147-96
William J. Henderson, ) Hearing No. 220-97-5133X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DECISION
On December 1, 1997, William E. Richards (appellant) timely appealed
the final decision of the United States Postal Service (agency), dated
November 3, 1997, which concluded that he had not been unlawfully
retaliated against in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. In his complaint,
appellant had alleged that officials at the agency's Medina, Ohio,
Post Office retaliated against him due to his prior EEO activity when
he was subjected to an investigation regarding alleged discrepancies
on two medical assessment forms he submitted to the agency and was
subsequently issued a Notice of Removal, effective October 12, 1996,
for alleged falsification of his employment information. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
The evidence of record establishes that, in June 1995, appellant was
offered the position of City Carrier at the Cuyahoga Falls, Ohio, Post
Office subject to a pre-employment physical examination. As part of
his pre-employment physical, appellant submitted a Form 2485 (Medical
Assessment). In July 1995, appellant was informed that he had been
determined to be medically unsuitable for the City Carrier position and
would not be hired after all. In September 1995, appellant initiated
an EEO complaint ("Complaint No. 1") with the agency over this matter.
It is this complaint for which appellant now alleges he was retaliated.
While Complaint No. 1 was awaiting a hearing,<1> and as his attorney
was conducting extensive discovery in preparation for the hearing,
appellant submitted another application to the agency for the position of
Part-Time Flexible (PTF) Distribution/Window Clerk at the Medina, Ohio,
Post Office. He again submitted a Form 2485 (Medical Assessment) and
was given another pre-employment physical by the same physician who had
earlier found him unsuitable for the Carrier position. In this instance,
he was found medically suitable for the position and was hired effective
December 9, 1995.
On August 14, 1996, the Medina Postmaster<2> informed appellant that she
was conducting an investigation into discrepancies between the Form 2485
he submitted at the time he was hired at Medina and the Form 2485 he had
submitted when he was applying for the position in Cuyahoga Falls which
was at issue in Complaint No. 1. At the end of this conversation, despite
appellant's assertion that he provided the Postmaster with adequate
explanations for any differences between the two forms, appellant was
instructed to clock out and stay at home until further notice. On that
same day, appellant notified his attorney of the Postmaster's actions.
His attorney contacted the agency's representative in Complaint No. 1,
who indicated that she was aware of the investigation because she had come
into possession of both the Form 2485s while preparing for the hearing
in appellant's Complaint No. 1 and reported the alleged discrepancies
between the two forms to her supervisor. This individual, in turn,
reported the matter to the Manager of Human Resources, which prompted
the investigation by the Postmaster. On August 28, 1996, appellant was
notified by the agency that, effective October 12, 1996, he was being
removed from his position for falsification of employment information
on his Form 2485. In her testimony, the Postmaster said she made the
decision to terminate appellant because she believed that appellant
downplayed and/or misrepresented his medical condition in his later
submitted Form 2485 in order to pass his preemployment physical.
On September 19, 1996, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against him
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On August 21, 1997, following a hearing at which four witnesses
testified, the AJ issued a decision concluding appellant had proven,
by a preponderance of the evidence, that he had been unlawfully
retaliated against in this matter for his pursuit of EEO Complaint No. 1.
In reaching this conclusion, the AJ found that the evidence of record
revealed the agency's proffered explanation for removing appellant
from his position--that he had submitted false information on his Form
2485s--to be a pretext for its true retaliatory motivation. The AJ
noted that appellant had offered legitimate reasons for the differences
between the two forms to the agency during the investigation, including
the fact that the nurse on hand during the second physical exam had
completed the form for him in an effort to expedite the process and may
have made some errors. Appellant had also pointed to a number of changed
circumstances between his submission of the two forms which accounted
for some of the differences. The AJ found that the evidence indicated
that appellant offered to submit further documentation to support
his explanations, but the Postmaster was not interested. Moreover,
the Postmaster never consulted with the examining physician or nurse
to interpret appellant's medical assessment forms. The AJ concluded
that the weight of the evidence pointed to the conclusion that the
"investigation" was not conducted in good faith, but to cover up the
fact that agency officials were using the alleged "discrepancies" as
an opportunity "to rid themselves of a disgruntled and 'persistent'
employee," who was actively pursuing a prior EEO complaint.
On March 9, 1998, the agency issued its final decision, rejecting the
AJ's recommended finding of unlawful retaliation. It is from this decision
that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis
to disturb the AJ's finding of unlawful retaliation. The Commission
notes that the AJ specifically found the testimony of several management
witnesses to be lacking in credibility. These credibility determinations
of the AJ are entitled to deference due to the AJ's first-hand knowledge,
through personal observation, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). The Commission, after an
independent review of the record, found no significant evidence to
contradict the AJ's credibility findings.
With one exception, nothing proffered by agency in its final decision
or on appeal differs significantly from the arguments raised before,
and given full consideration by, the AJ. That exception is the agency's
contention that the Commission should afford deference to findings in an
arbitrator's decision which was issued after the AJ issued his decision in
this matter. The Commission declines to do so, noting that the arbitrator
did not have the same evidence or witnesses before him, addressed
a different issue, and made no determination on a Title VII claim.
Based on these factors, the Commission concludes that the arbitrator's
decision has no relevance to a determination of the instant appeal.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE that portion of the agency's final decision which
rejected the AJ's finding of unlawful retaliation. In order to remedy
appellant for its discriminatory actions, the agency shall comply with
the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer to place appellant in the position from
which he was unlawfully removed, or a substantially equivalent position,
retroactive to the effective date of his removal.
(B) Within sixty (60) calendar days of the date this decision becomes
final, the agency shall provide appellant with a back pay award, with
interest, reflecting any salary and/or benefits he lost as a result of
his removal. The agency shall determine the appropriate amount of back
pay, interest and other benefits due appellant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. Interim earning may be deducted from the back pay
award. The appellant 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 appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The appellant 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."
(C) The agency shall provide training to the officials responsible
for its actions in this matter in their responsibilities under all the
Federal equal employment opportunity statutes.
(D) The agency shall post at the Medina, Ohio, 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.
(E) The agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages incurred as result
of the agency's retaliatory actions which resulted in appellant's
termination. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Rivera v. Department of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). See also, Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992), request for reconsideration denied,
EEOC Request No. 05930306 (February 1, 1993). The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages. Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights.
(F) 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 appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
March 19, 1999
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Medina, Ohio, Post Office supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The Medina, Ohio, Post Office has been found to have unlawfully
retaliated against the individual affected by the Commission's finding
for engaging in prior EEO activity when he was removed from his position
as a PTF Distribution/Window Clerk. The Commission has ordered that
this individual be retroactively reinstated to his position with back
pay, as well as having his claim for compensatory damages investigated
and decided upon. The Medina, Ohio, Post Office 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 Medina, Ohio, Post Office 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 agency was later found to have discriminated against appellant
on the basis of a perceived disability in Complaint No. 1. Richards
v. United States Postal Service, EEOC Appeal No. 01973254 (December
2, 1998).
2 The Postmaster testified that she was aware of appellant's prior EEO
complaint at the time she took these actions.