05891068
03-08-1990
Appellant, v. Anthony M. Frank, Postmaster General, United States Postal Service, Agency.
Calvin W. Calhoun, Sr., Appellant,
v.
Anthony M. Frank, Postmaster General, United States Postal Service, Agency.
Request No.
05891068
Appeal No. 01891274
Agency No. 3-R-0056-88
March 08, 1990
GRANTING OF REQUEST TO REOPEN
INTRODUCTION
On September 8, 1989, Calvin W. Calhoun, Sr. (hereinafter referred to as appellant), through his representative, initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Calvin W. Calhoun, Sr. v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01891274 (August 24, 1989), received by appellant on August 28, 1989. EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). Appellant bases his request on 29 C.F.R. 1613.235(b)(2) (where the previous decision constitutes an erroneous interpretation of law or regulation, or a misapplication of established policy). For the reasons set forth herein, appellant's request is granted.
ISSUE PRESENTED
The issue presented herein is whether the Commission's previous decision properly awarded the appellant attorney's fees but not backpay or reinstatement pursuant to our finding that the agency had discriminated against the appellant when he was not permitted to switch crafts.
BACKGROUND
The appellant filed a formal EEO complaint, dated June 28, 1988, alleging that the agency had discriminated against him when his request for a transfer from carrier craft to mail handler craft was denied. The agency investigated the complaint and issued a Proposed Disposition (PD) finding no discrimination. The appellant's request for a hearing was denied on the grounds that it was untimely. The agency issued a final agency decision (FAD) which adopted the PD. The appellant appealed to this Commission. We reversed the final agency decision and found that the agency had discriminated against the appellant. We ordered that attorney's fees be paid to the appellant and that the agency post a notice of its discriminatory action.
This matter arose while the appellant was a level 5 city carrier at the agency's facility in Tallahassee, Florida. On April 29, 1988, the appellant submitted a bid card requesting a transfer to a level 4 mail handler position. His request was denied. The appellant alleged that similar requests by white employees were honored. One of the comparative white employees asked for the transfer allegedly for educational reasons. The record indicates that the appellant requested the transfer for educational and 'personal' reasons, including decreasing the costs of child care. The appellant later argued that he had requested the transfer for health reasons as well.
The Postmaster explained that he did not allow individuals to transfer to lower level positions and thus refused the request. The appellant's supervisor denied the request because the appellant's reasons for the transfer were personal. The agency's Employee and Labor Relations Manual (ELRM) indicated that a change to a lower grade could be made at an employee's request. The employee must make a request establishing that the request is for personal reasons, in his or her own interest, and not because of pressure exerted by the agency.
The appellant requested EEO counseling on May 13, 1988, and filed a formal complaint on June 28, 1988, alleging that the agency had discriminated against him when it failed to honor his request for a transfer to a level 4 mail handler position.
In early August of 1988, the appellant requested sick leave because of a medical condition (acute peptic ulcer). By letter dated August 19, 1988, appellant informed his supervisor that:
(b)ecause of reoccurring health problems, there is a need for me to redirect my career in order to alleviate continuing health problems. Fortunately, I have been invited to study (at a state university). As I am sure you will agree, this is an opportunity I cannot refuse. This resignation will become effective on Monday, August 22nd.
Appellant also wrote a letter, dated August 19, 1988, to the agency's personnel office explaining that he was resigning 'as a result of failing and continuing health and an invitation to study (at a state university).' Finally, by letter dated August 19, 1988, appellant informed the agency's EEO Manager that he was resigning effective August 22, 1988, due to 'failing health/stress and a desire to take educational courses.' Appellant informed the EEO Manager that he wished to continue with his EEO complaint but that:
(t)he corrective action sought is being changed as a result of this termination (sic) from a change to Tour I to monetary reward. Because of the System's failure to transfer me to Tour I, so that stress will be alleviated and at the same time, I will have an opportunity to take desired educational courses, I have had to resign from my position.
(According to appellant in his request to reopen, the purpose of his August 19, 1988, letter to the EEO Manager was to raise the issue that his resignation constituted a constructive discharge in that he was forced to resign due to the agency's alleged discriminatory failure to allow him to transfer from the carrier to the mail handler craft.)
By letter dated September 2, 1988, the agency acknowledged receipt of appellant's formal complaint and informed appellant that the following issue was being accepted for investigation: 'When your bid for mail handler Job #2308 was returned to you(.)' The agency's letter went on to notify appellant that, if he did not agree with the issue as defined, he must 'provide (the agency) with sufficient reasons within 7 calendar days of receipt of this letter.' The acknowledgement letter did not state that appellant could appeal to this Commission the agency's definition of his complaint, although it did inform appellant of his right to appeal to this Commission if he was dissatisfied with the agency's final decision 'after a hearing or without a hearing....'
By letter dated September 2, 1988, appellant informed the agency that he disagreed with the issue as defined by the agency and argued instead that the proper issue was '(the Postmaster) and the Tallahassee Post Office prohibited my request to change to a lower level grade for personal reasons; (sic) when in the past a similar request was approved for a white male.' Appellant also argued that the agency was ignoring the August 19, 1988, letter he had sent to the EEO Manager and that this document, among others, 'is necessary to aid in an (sic) resolving this case.' Specifically, appellant noted the 'change in the Resolution requested... due to loss of income.'
It must also be noted that, by undated letter received by the Commission on September 19, 1988, appellant stated that he wished to appeal his 'case,' arguing that he was unable to switch crafts because of his race. Appellant ended his letter stating,
I had a great need to switch crafts so I can continue my education so I had to quit my job as a result of the (agency's) discrimination. I would like to be compensated for the wages lost as a result of this discrimination.
The Commission, in a letter dated September 23, 1988, responded to appellant's September 1988 correspondence, stating:
It appears that this matter is not properly before (the Commission) as you have not received your agency's final decision...If you have received your agency's final decision, please return to us this letter... and a copy of the agency's final decision.
Appellant responded to our September 23, 1988, correspondence, but only after he had received the agency's final decision adjudicating the merits of his complaint and in conjunction with his appeal of that decision.
In the meantime, the EEO Investigator defined appellant' s complaint as challenging the denial of his request for a transfer to the mail handler craft for which appellant was seeking 'monetary compensation.' Upon completion of the investigation, the agency issued a Proposed Disposition (PD). The PD defined appellant's complaint as raising one issue: whether appellant was discriminated against 'when (he was) denied a transfer to the mail handler craft from (his) carrier position.'
Appellant did not respond to the PD until December 23, 1988. In his response, while appellant contested various findings of facts, he did not contest the scope of the issue adjudicated.
In appealing the agency's final decision (which adopted the PD) to this Commission, appellant noted that his resignation letters 'alluded to the fact that (his) resignation was due to declining health and resulting in a need to change craft.' He also noted his previous correspondence to us which we had received on September 19, 1988.
In our prior decision, we held that the appellant had established a prima facie case of discrimination based on race when he was not, transferred to the position of mail handler, level 4. We further held that the agency did not articulate a legitimate reason for its action. Accordingly, we found that the agency had discriminated against the appellant. We assumed that had the appellant received the requested downgrade, he would have earned less than he earned in his carrier position. Therefore, we did not award backpay. We did not order reinstatement because the appellant arguably asserted that he did not want to return to the agency. We did award attorney's fees. Our previous decision did not discuss the issue of constructive discharge.
The appellant, through his representative, now requests reopening. He asserts that he is entitled to backpay from the date of his resignation, and reinstatement to the position of mail handler along with all associated benefits. He claims that he should have received this award as a component of make whole relief because he was forced to resign for health reasons after the agency did not transfer him to the position of mail handler. Therefore, the appellant asks for backpay and reinstatement because he was 'constructively discharged.' The appellant also asks for backpay from the point his transfer was denied to the point he resigned. He claims that he would not have earned less as a mail handler than he would have as a mail carrier and that our previous decision was in error on this point. He points out that we should not rely on the base pay schedule because he may have received additional pay for working more hours or for working the night shift.
The agency responds, stating that the appellant's resignation was voluntary, and that he did not raise this allegation during the counseling stage. The agency adds that there is no evidence that the agency coerced or intimidated the appellant into resigning. Therefore, the agency believes that the appellant was not constructively discharged, and that he is not entitled to reinstatement or backpay from the point he resigned. As for backpay from the point his request for a transfer was denied to the point he resigned, the agency argues that the base pay for a mail handler is lower than the base pay for a mail carrier, therefore no backpay is due.
ANALYSIS AND FINDINGS
Based upon a review of the record, the Commission concludes that appellant's complaint has been improperly processed, mainly due to the fact that the agency failed to correctly identify and define the issues raised in appellant's complaint. While appellant's formal complaint of June 28, 1988, raised only the matter of his denial of a transfer, his August 19, 1988, letter to the EEO Manager raised the issue that his resignation constituted a constructive discharge. That it was appellant's intent to amend his formal complaint to include the issue of constructive discharge is made plain by his reference to the change in remedy he sought: monetary reward for lost wages as a result of the constructive discharge. The fact that appellant did not contact an EEO Counselor with respect to the new issue of constructive discharge was not fatal, as his letter to the EEO Manager constituted sufficient substitute contact and occurred in a timely manner. The fact that appellant did not use the words 'constructive discharge' also was not fatal. [FN1] The EEO Manager erred in not responding to appellant's efforts to amend his complaint by referring him to an EEO Counselor. Likewise, the agency erred when, in issuing its September 2, 1988, letter defining the issues in appellant's complaint, it did not give appellant clear notification of his right to appeal to this Commission what was, in effect, the agency's rejection of the constructive discharge issue.
Similarly, this Commission erred in not recognizing the correspondence we received from appellant on September 19, 1988, as an appeal from the agency's September 2, 1988, determination concerning the definition of the issues raised in appellant's complaint. Had this correspondence been docketed as an appeal, this Commission would have, as it does now, issued a decision finding that the agency had not properly defined appellant's complaint. Consequently, we hold that appellant, through a proper amendment procedure, [FN2] raised two issues in his complaint: denial of transfer and constructive discharge. As the constructive discharge issue was not adjudicated by the agency, it must be remanded for further processing.
The Commission will not, however, vacate its prior finding that, in being denied a transfer, appellant was discriminated against. This finding shall remain in full force and effect and the agency, in processing the constructive discharge issue, shall do so in light of this finding of discrimination. Appellant has alleged that he was constructively discharged when he resigned on August 22, 1988. An employee who resigns after being subjected to discrimination shall be considered to have been constructively discharged if the discriminatory practices against the employee made continued employment so intolerable that a reasonable person would have felt compelled to resign. Borque v. Powell Electric, 617 F.2d 61, 65 (5th Cir. 1980).
The agency responds that the allegation of constructive discharge is groundless, that the appellant resigned voluntarily and that the agency did nothing to force him out. [FN3] We note that these arguments go to the merits of the appellant's allegation. We can not review a judgment on the merits because the agency has not yet issued one. There has been no investigation and no FAD addressing the issue of constructive discharge. Even if the agency believes the appellant's case to be weak, it must first conduct an investigation and then ultimately issue a FAD. At this stage, the appellant, has presented a non-frivolous allegation of constructive discharge [FN4] which the agency must investigate. We therefore find it necessary to remand to the agency the issue of constructive discharge for a full investigation. Once a determination is made as to whether appellant was constructively discharged, the issues concerning whether appellant is entitled to reinstatement and backpay from the date of resignation can then be determined.
The appellant also argues that he is entitled to backpay from the date the agency refused to transfer him to the date he resigned.
Our previous decision and the agency did not award backpay on the assumption that the mail handler position had a lower rate of pay. The appellant has pointed out the possibility that he may have earned more in the position of mail handler than he did in the position of city carrier because he would have worked during the night or he would have worked additional hours. Therefore, we should not have assumed that the position of mail handler would have yielded less pay than the position of city carrier. The appellant is entitled to 'make whole' relief in order to place him in the position he would have been in but for the discrimination. [FN5] Accordingly, on remand, appellant shall have the opportunity to prove damages for the discrimination we have previously adjudged was practiced against him (viz., that had he been transferred, he would have earned more money as a mail handler than as a mail carrier).
CONCLUSION
Based on a review of the appellant's request to reopen, the agency's response, the previous decision, and the entire record, the Commission finds that appellant's request meets the criteria of 29 C.F.R. 1613.235(b) and it is the decision of the Commission to grant appellant's request. The decision of the Commission in EEOC Appeal No. 01891274 is hereby MODIFIED. That part of our prior decision which held that appellant was discriminated against when he was denied a transfer is, however, AFFIRMED. The agency is hereby ordered to implement the ORDER included herein. There is no further right of administrative appeal from the decision of the Commission on this request to reopen. This decision does not constitute a decision on the merits of the constructive discharge issue.
ORDER
Accordingly, the agency's decision is VACATED and appellant's claims of constructive discharge and entitlement to backpay (for the discriminatory failure to transfer) are hereby REMANDED for processing in accordance with the Order below.
A. The agency shall accept, investigate and process the constructive discharge allegation pursuant to 29 C.F.R. 1613.215-222. The agency shall also conduct a supplemental investigation regarding appellant's contention that, had he been transferred to the mail handler craft, he would have earned a greater salary than as a letter carrier. Both issues shall be subject to a proposed disposition, with notice given of a right to a hearing, and to a final agency decision. The agency shall notify the Commission and appellant no later than thirty (30) calendar days from the date this decision is received that it has accepted 1) the constructive discharge issue and 2) the backpay as remedy issue involving the prior finding of discrimination, and indicate the name and telephone number of the investigator to whom they have been assigned. The investigation shall be completed and a proposed disposition issued within 150 calendar days of the date this decision is received, unless the matter is otherwise resolved within that timeframe. A copy of the relevant document finalizing the complaint must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION DECISION
Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must report completion of the corrective action to this Commission within sixty (60) calendar days of receipt of the decision. See 29 C.F.R. 1613.237(b), (c) (1988). The agency's report should be forwarded to the Director of Compliance, Office of Review and Appeals, P.O. Box 19848, Washington, D.C. 20036. A copy of the report must be sent to the appellant.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN
RIGHT TO FILE A CIVIL ACTION
You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head, may result in the dismissal of your case. Fed. R. Civ. P. 25(d)(2).
RIGHT TO COUNSEL
If you decide to file a civil action and do not have or cannot afford the services of an attorney, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., as amended, and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791 and Sec. 794c, as amended, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the civil action without payment of fees, costs or security. Your request must be FILED WITH THE COURT WITHIN THIRTY (30) DAYS from the date that you receive the Commission's decision.
FOR THE COMMISSION:
Frances M. Frank
Executive Officer
Executive Secretariat
[FN1]. Young v. National Center for Health Services Research, 828 F.2d 235, 238 (4th Cir. 1987).
[FN2]. See also Sanchez v. Standard Brands, Inc., 431 F. 2d. 955 (5th Cir. 1970), which holds that an EEO complaint can encompass 'any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case...'431 F.2d 955, 466, crusting King v. Georgia Power Co., 295 F.Supp. 943, 947 (W.D. Ga. 1968) (citation omitted).
[FN3]. Although the issue is not yet before us, we note that the 'Commission will not require a showing that the intolerable working conditions were imposed deliberately by the employer, nor will it require a showing that the employer imposed them with the actual intention of having the employee resign.'EEOC Decision No. 33 FEP Cases 1887 (November 28, 1983).
[FN4]. We find that this allegation does state an actionable claim of constructive discharge. See e.g. Young v. National Center for Health Services Research, 828 F.2d 235 (4th Cir. 1987) (a federal employee's allegations and testimony of constructive discharge create a genuine issue of material fact and the district court improperly dismissed plaintiff's complaint); Joe Vega v. USPS, EEOC Appeal No. 01881592 (December 7, 1988) (appellant's resignation was involuntary where treatment she received by the agency contributed to the deterioration of her health); and Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984) (black employee constructively discharged when white employees were regularly granted promotions rather than plaintiff).
[FN5]. Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975).