0720080027
05-30-2008
Amy Gonzales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Amy Gonzales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720080027
Agency No. 4E-800-0066-05
Hearing No. 320-2005-00363X
DECISION
Following its February 1, 2008 final action, the agency filed an appeal with this Commission requesting that we affirm its rejection of the discrimination finding of an EEOC Administrative Judge's (AJ), in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The agency also requests that the Commission affirm its rejection of the relief ordered by the AJ.
Complainant, a former Letter Carrier, at the agency's Pueblo Main Post Office in Pueblo, Colorado, filed a formal EEO complaint on February 18, 2005. Therein, complainant claimed that she was discriminated against on the bases of race (Hispanic/Native American), sex (female), age (49) and in reprisal for prior EEO activity when:
(1) on November 22, 2004, her driving privileges were revoked; and
(2) on January 6, 2005, she was issued a Notice of Removal.
Following the investigation, complainant was provided with a copy of the report of investigation and requested a hearing before an Administrative Judge (AJ). During a February 6, 2007 pre-hearing conference, complainant withdrew race and age as bases, as well claim (1) concerning the revocation of driving privileges.
Following a hearing on February 6, 7, 8 and 9, 2007, the AJ issued a decision on December 10, 2007, finding discrimination/unlawful retaliation in the decision to remove complainant.
The AJ found that complainant established a prima facie case of sex and reprisal discrimination when she was removed from agency employment. The AJ also determined that the agency had met its burden of production by articulating a legitimate, non-discriminatory reason for its actions--concerns about complainant's motor vehicle accident history and her safety record following a customer complaint about her driving. However, the AJ determined that the agency withheld critical evidence that denied complainant the opportunity to show that the proffered reason she was removed was not true and she was really removed because of her sex. Therefore, the AJ applied an adverse inference against the agency and concluded that complainant was unlawfully removed from her employment due to sex.1
The AJ further applied the adverse inference in his reprisal analysis, and determined that a combination of the adverse inference with other compelling evidence called into question the reliance of agency officials on a customer complaint letter regarding complainant's driving record as justification for her removal. The AJ concluded that the evidence, and the adverse inference, supported a determination that complainant was retaliated against for prior protected activity because the agency had failed to discipline city or rural carriers, who had no prior EEO activity, upon receipt of customer complaints concerning their driving habits.
The AJ found that following her removal, complainant suffered depression, anxiety, and began a medication regime which included Lexapril. The AJ noted that even at the time of the hearing, complainant testified that she still suffered from depression.
After a review of the testimony and medical records, the AJ found complainant established a link between her being discriminatorily removed from agency employment and the resulting emotional distress. The AJ awarded complainant back pay with interest calculated pursuant to the Back Pay Act for all absences related to her removal including all premiums, differentials, leave and other benefits subject to offsets and reductions for income and employer provided benefits earned from March 9, 2005, until complainant is returned to work with the agency.
The AJ further awarded complainant $70,000.00 in non-pecuniary compensatory damages to compensate her for the discrimination. Specifically, the AJ found complainant suffered from major depression, stress, anxiety and financial difficulties for a period of more than two years as a result of being removed from her job. The AJ awarded complainant $6,000.00 in pecuniary compensatory damages to compensate her for the tax penalties for having to withdraw her thrift savings funds in two installations (the first one for $11,000.00 and the second one for $21,000.00). The AJ determined that because complainant did not provide sufficient evidence indicating she had to pay higher interest rate due to refinancing her vehicle, he did not award complainant pecuniary damages with regard to her vehicle.
As for the remaining remedies, the AJ ordered the agency to pay attorney's fees and costs in the amount of $81,440.76; expunge all official and unofficial documents relating to complainant's termination from her file; provide the Postmaster (PM) and complainant's former first-level supervisor (S1) with four hours of live, focused EEO training from an outside and independent source; determine whether the PM and S1 should be disciplined for their discriminatory conduct; and post a notice on all employee bulletin boards stating that it was found in violation of Title VII.
As an initial matter, the Commission notes that one witness testified by telephone at the hearing held by the AJ. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).2 However, because the facts of this case pre-date Louthen, the Commission will assess the propriety of taking the testimony of some witnesses by telephone, considering the totality of circumstances. Here, it is unclear whether exigent circumstances existed. However, it is clear that there were no issues of witness credibility that might have been impacted by the taking of this testimony by telephone, and neither party objected to the manner in which the witness testified. Under these circumstances, even if it is assumed that the AJ abused his discretion by taking testimony by telephone, the Commission finds that his action would have constituted harmless error.
The Commission discerns no basis to disturb the AJ's findings. We find that the findings of fact are supported by substantial evidence, and that the AJ correctly applied the appropriate regulations, policies and laws.
Moreover, we further find that given the specific facts in this case, the AJ's remedial award is appropriate. We note that in regard to attorney's fees and costs, the record contains a copy of complainant's attorney's petition fee dated September 24, 2007. Therein, the attorney requested his hourly rate of $335.00 in the amount of $86,409.90 and $50.00/$90.00 per hour for legal assistant work in the amount of $765.00 and $2,050.81 in legal costs for a total of $89,225.71. The agency submitted its Response to Complainant's Fee Petition objecting to the fee petition and suggested an alternative amount of $35,834.63 for attorney's fees and $951.06 for legal costs. Specifically, the agency argued that there were unreasonable hours spent researching and reviewing issues which should be routine for an attorney with 25 years of employment law experience; unacceptable charges for work performed prior to entering an appearance; complainant was not entitled to a full attorney's fees and costs because she did not prevail on all of her claims; and objects to costs associated with unspecified "internal copies" and the $649.00 mileage charges.
We note in his decision, the AJ determined that complainant's attorney's time records were sufficient and thoroughly detailed. The AJ determined that a review of the record indicates that complainant's attorney charged excess of hours reviewing numerous rulings and evidence already developed in complainant's case prior to his notice of entry. Specifically, the AJ determined that an excess of 20 hours for this purpose was unreasonable. The AJ applied a 50% reduction in the amount of time sought by complainant's attorney for pre-entry of appearances services and approved an amount of $3,440.43 (10.27 hours x $335.00 hourly rate) hours for this purpose. The AJ also allowed that the 1.75 hours of work performed on January 15, 2007 at $90.00 per hour to prepare entry of appearance, locate records and finalize request for reconsideration.
The AJ rejected the agency's argument that complainant was not entitled to a full award of attorney's fees because she did not prevail in all of her claims which she elected to withdraw during the pre-hearing. Specifically, the AJ disagreed with the agency's argument that complainant's voluntarily withdrawal of her suspended driving privileges (claim (1)) equates to a failure to prevail on all of her claims.
Regarding the agency's argument that the amount of work performed and charged by complainant's attorney after the completion of the hearing amounting to 25.99 hours was unreasonable, the AJ determined that complainant did not provide any justification for spending 10.5 hours reviewing the transcripts when no other post-hearing submissions to the court were expected, due or required. The AJ also found that complainant provided no justification for a total of 1.5 hours on June 9 and 26, 2006 and August 22, 2007 for "follow up with TA re: perjury issues." Therefore, the AJ reduced the attorney's fees award by a total of $4,020.00 (10.5 = 1.5 = 12 hours x $335.00 per hour.
Regarding the agency's argument that complainant's charges for unspecified "internal copies" and $649.00 mileage charges, the AJ noted that the record contains an affidavit from a employee of responsible for all billing matters in complainant's attorney's firm. After a review of the affidavit, the AJ determined that it was reasonable to conclude that 1,083 pages of copying was necessary and approved the internal copies charges. The AJ determined, however, that the mileage charges were "more problematic." Specifically, the AJ noted that the hearing took place in Pueblo, Colorado, approximately 110 miles south of the Denver metropolitan area. The AJ noted that according to the U.S. General Services Administration 2007 allowance for use of a personal vehicle for travel purposes is .485 cents per mile. The AJ further noted that applying this rate to complainant's attorney's mileage charge reflects that he traveled 1,338.14 miles in this case which equates to six trips to and from Pueblo, Colorado which is neither documented nor claimed as necessary by complainant. Here, the AJ applied a 50% reduction, reducing the $649.00 mileage charges to $324.50.
Therein, the AJ awarded complainant a total award of $81,440.76 in attorney's fees and costs. We concur that the agency shall pay the amount of $81,440.76 in attorney's fees and costs.
We REVERSE the agency's final action, and REMAND this matter to the agency to take remedial action in accordance with this decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes final, the agency shall remit complainant all back pay and/or benefits lost as a result of its discrimination actions, to include lost night differential, Saturday and Sunday pay, holiday pay, accrued leave and lost benefits including cost of living increases, medical and life insurance benefits, and retirement contributions, with interest from March 9, 2005, to the present less any back pay compensation.
2. Within sixty (60) calendar days of the date this decision becomes final, the agency shall tender to complainant $70,000.00 in non-pecuniary compensatory damages and $6,000.00 in compensatory damages.
3. Within sixty (60) calendar days of the date this decision becomes final, the agency shall expunge all official and unofficial documents relating to complainant's termination from her personnel official file.
4. Within sixty (60) calendar days of the date this decision becomes final, the agency shall provide identified [PM] and [S1] with four (4) hours of live and focused EEO training.
5. Within sixty (6) calendar days of the date this decision becomes final, the agency shall review the matter giving rise to the instant formal EEO complaint and determine whether [PM] and [S1] who were responsible for the discrimination should be disciplined for their discriminatory conduct.
6. Within sixty (60) calendar days of the date this decision becomes final, the agency shall tender to complainant's attorney $81,440.76 in attorney's fees and costs.
7. The agency shall post a notice in accordance with the paragraph below.
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 verifying that the corrective action has been implemented.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Pueblo Main Post Office in Pueblo, Colorado, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (S0408)
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 (Z0408)
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
May 30, 2008
__________________
Date
1 The AJ found that in order to determine whether similarly situated male comparators were treated differently than complainant, he needed information regarding whether or not any customers had submitted complaints about the male carriers, what type of follow up was conducted, and the reasons that discipline was or was not imposed. The AJ found that the agency "without good cause, was either unable to provide adequate information or refused to do so despite my orders, denied complainant critical relevant and probative evidence and significantly impaired her ability to prove her case."
2 In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony is improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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