07a20133
09-29-2003
Audrey Toombs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Audrey Toombs v. United States Postal Service
07A20133
09-29-03
.
Audrey Toombs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20133
Agency No. 1G-741-0015-00
Hearing No. 310-A0-5537X
DECISION
The United States Postal Service (hereinafter referred to as the
agency) issued its final action and noticed an appeal from the July 1,
2002, decision of an EEOC Administrative Judge (AJ) in the complaint
of Audrey Toombs (hereinafter referred to as complainant), claiming
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
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. For the reasons that follow,
the Commission affirms the decision of the AJ and finds that the agency
discriminated against complainant based on race (black) in violation of
Title VII.
Complainant filed a formal complaint on February 14, 2000, claiming
that the agency discriminated against her on the bases of race (black)
and disability (arthritis) when she was terminated from her casual
position in December 1999. Following an investigation, she requested
a hearing before an AJ; the AJ held a hearing and, in June 2002, issued
a decision finding that the agency discriminated against complainant in
violation of Title VII and the Rehabilitation Act and ordering relief.
In its final action, the agency declined to implement the AJ's decision
and filed the instant appeal herein.
As more fully set out in the record, complainant was hired as a casual
employee (NTE 21 days) on December 6, 1999, for the 1999 Christmas
season and assigned to a sorting machine. Within a few days, because
of pain in her back and shoulders, complainant asked for a change in
duty to the 'manual operation,' a position she had worked on previous
casual appointments. The agency did not respond to her request, and,
on December 10, 1999, she was terminated from her appointment, with
instructions that she not be rehired.
With regard to her claim based on race, the AJ found that the agency
discriminated against complainant, comparing her to a white Christmas
casual employee (E1), who also requested a change in duty due to a medical
condition (spider bite) which was granted, and she was not terminated.
The AJ also found that the agency discriminated against complainant on
the basis of disability, in that, the agency did not afford complainant
an opportunity to provide medical documentation in support of her request.
In its appeal brief, the agency argued that the AJ erred in finding
discrimination. The agency disputed that complainant was a person with
a disability entitled to coverage under the Rehabilitation Act or that
complainant was similarly situated to E1, because E1 did not submit a
note "threatening injury" if she were not moved to another job. At the
hearing, the agency asserted that complainant had initially submitted a
hand-written note stating she would injure herself if not moved to another
job, which agency managers considered was a threat of intentional injury.
The agency could not produce the note, and the AJ found the agency's
testimony and argument on this point to be incredible; she found that the
note contained in the record did not indicate a threat and such action by
complainant was incompatible with her employment record with the agency.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 an
independent 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
of this matter.
With respect to complainant's claim of race discrimination, the Commission
finds that the agency treated E1 more favorably when she requested a
change in duty, in that, the agency granted her a change in duty and
did not summarily terminate her employment, and it did not articulate a
legitimate, nondiscriminatory reason for its refusal to similarly grant
complainant's request. We find, therefore, that the agency discriminated
against complainant based on race when she was terminated on December
10, 1999.<1>
The Commission notes that in the directive to terminate complainant dated
December 10, 1999, the agency manager stated that the agency should not
rehire complainant. The agency is reminded of its obligation to comply
with federal laws prohibiting discrimination.
CONCLUSION
Accordingly, the agency's final decision is REVERSED. The agency is
directed to comply with the Order, below.
ORDER
The agency is ordered to take the following remedial actions:
A. Within ninety (90) days of the date this decision becomes final,
the agency shall conduct no less than four (4) hours of training for all
supervisory and managerial employees in complainant's chain of command
in December 1999, including the agency manager. Such training shall
address these employees' responsibilities with respect to eliminating
discrimination in the federal workplace and under the equal employment
opportunity laws. The training shall place special emphasis on prevention
and elimination of discrimination based on race. The Commission does
not consider that training is a disciplinary action.
B. Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $5,000 as non-pecuniary compensatory
damages.<2>
C. The agency shall determine the appropriate amount of back pay, with
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."<3>
D. The agency shall consider appropriate disciplinary action against
the manager identified in the record as the agency manager who ordered
complainant's termination, and report its decision to the Commission.
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.
E. The agency shall expunge from all agency records references to
complainant's termination.
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
relief ordered herein, including evidence that the corrective action has
been implemented. A copy of all submissions to the Commission shall be
sent to the complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its P&D Center, Tulsa, Oklahoma,
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 (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
____09-29-03______________
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, Tulsa, Oklahoma, 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 discriminated against an employee
based on race when it discharged the employee, and it has remedied
the employee affected by the Commission's finding of discrimination
by providing back pay, compensatory damages, and expungement of agency
records. The United States Postal Service, P&D Center, Tulsa, Oklahoma,
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
race discrimination.
The United States Postal Service, P&D Center, Tulsa, Oklahoma, 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:
1Having found that the agency discriminated against complainant based
on race, we need not reach her claim under the Rehabilitation Act.
2On appeal, the agency did not oppose the AJ's award of compensatory
damages.
3We find that complainant is entitled to back pay for the remainder of
the casual appointment at issue herein as if she had not been terminated.
See Albemarle Paper Company v. Moody, 422 U.S. 405, 418 (1975).