Yvonne E. Brazier, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 28, 2004
07a40075 (E.E.O.C. Sep. 28, 2004)

07a40075

09-28-2004

Yvonne E. Brazier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Yvonne E. Brazier v. United States Postal Service

07A40075

09-28-04

.

Yvonne E. Brazier,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 07A40075

Agency No. 4H-350-0131-02

Hearing No. 130-2003-08159x

DECISION

On March 12, 2004, the United States Postal Service (agency) filed an

appeal from the decision of the Administrative Judge (AJ), finding

that the agency violated Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq., when it discriminated against

Yvonne E. Brazier (complainant) on the basis of religion (AME Church)

when it failed to accommodate her religious beliefs April 30, 2002.<1>

The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted

in accordance with 29 C.F.R. � 1614.405. Complainant also filed an appeal

from the agency's final order, which was closed, and we consider that

appeal in this decision. See EEOC Appeal No. 01A42962 (May 19, 2004).

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). After a

thorough review of the record and hearing testimony in its entirety,

including consideration of all statements submitted on appeal, it is the

decision of the Commission that the AJ accurately stated the facts and

correctly applied the pertinent principles of law and that her decision

is supported by substantial evidence in the record. We find that the

decision of the AJ, finding that unlawful employment discrimination based

on religion was proven by a preponderance of the evidence, is supported

by the record. We also find that the decision of the AJ, finding that

unlawful employment discrimination based on race and reprisal was not

proven by a preponderance of the evidence, is supported by the record

CONCLUSION

Accordingly, the Commission finds that the agency discriminated against

complainant based on religion when her days off were changed and that

the agency did not discriminate against complainant based on race and

reprisal. The agency is directed to comply with the Order, below.

ORDER<2>

The agency is ordered to take the following remedial action:

A. Within sixty (60) days of the date this decision becomes final,

the agency shall reimburse complainant for leave taken where the agency

failed to reasonably accommodate her religious beliefs, with interest,

from April 30, 2002, until her separation from the agency.

B. Within sixty (60) days of the date this decision becomes final,

the agency shall pay complainant $4,000, in non-pecuniary compensatory

damages.

C. Within three months of the date this decision becomes final, the agency

shall provide training to agency managers involved in the decision to deny

complainant's request for religious accommodation. Such training shall

emphasize these employees' responsibilities with respect to eliminating

discrimination in the federal workplace and under the equal employment

opportunity laws.

D. The agency shall consider appropriate disciplinary action against the

agency managers involved in the decision to deny complainant's request

for religious accommodation. If the agency decides to take disciplinary

action, it shall identify the action taken. If the agency decides not

to take disciplinary action, it shall set forth the reason(s) for its

decision not to impose discipline. The Commission does not consider

training to be a disciplinary action.

E. 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 for leave due complainant, including

evidence that the corrective action has been implemented. Copies of

all submissions to the Commission shall be sent to complainant.

POSTING ORDER (G0900)

The agency is ordered to post at its P&D Center in Mobile, AL, 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 (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

___09-28-04_______________

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 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 privilege of

employment.

The United States Postal Service, P&D Center, Mobile, Alabama, supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under the law.

The Commission found that the agency engaged in discrimination based on

religion when it failed to accommodate an employee's religious beliefs,

and it has remedied the employee affected by the Commission's finding

of discrimination based on religion by reimbursement for leave taken,

an award of compensatory damages, and training for agency managers.

The United States Postal Service, P&D Center, Mobile, Alabama, will

ensure that officials responsible for personnel decisions and terms and

conditions of employment will abide by the requirements of all federal

equal employment laws and will not subject employees to discrimination

on the basis of their religious beliefs.

The United States Postal Service, P&D Center, Mobile, Alabama, 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 participated in proceedings pursuant to, Federal

equal employment opportunity law.

Date Posted:

Posting Expires:

29 C.F.R. Part 1614.

1Complainant's claims based on race (black) and reprisal were also

addressed by the AJ. She found that the agency did not discriminate

against complainant on these bases, and the agency agreed to implement

that portion of the AJ's decision.

2We note that complainant is no longer employed by the agency.