Bobbi S. Silldorff, Complainant,v.John E. Potter, Postmaster, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
07a50020 (E.E.O.C. Mar. 18, 2005)

07a50020

03-18-2005

Bobbi S. Silldorff, Complainant, v. John E. Potter, Postmaster, United States Postal Service, Agency.


Bobbi S. Silldorff v. United States Postal Service

07A50020

March 18, 2005

.

Bobbi S. Silldorff,

Complainant,

v.

John E. Potter,

Postmaster,

United States Postal Service,

Agency.

Appeal No. 07A50020

Agency No. 1J-531-0074-03

Hearing No. 260-03-09150X

DECISION

On September 30, 2004, an EEOC Administrative Judge (AJ) issued a decision

finding that the agency had violated Title VII of the Civil Rights Act

of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., by placing

complainant's medical records in her employment file. Following its

November 12, 2004 final action not implementing the AJ's decision,

the agency filed a timely appeal. Complainant filed a response to the

agency's appeal, requesting that the Commission reverse the final

action, and affirm the AJ's finding of reprisal discrimination, and

order of remedies.

During the relevant period, complainant was employed as a Mail Handler,

M-04, at the agency's Milwaukee Mail Priority Annex in Oak Creek,

Wisconsin. Complainant filed a formal EEO complaint alleging that the

agency had discriminated against her in reprisal for prior EEO activity

when in November 2001, she discovered medical records inappropriately

inserted into her employment file.

At the conclusion of the investigation, complainant was provided a copy

of the investigative report and requested a hearing before an AJ.

Following a hearing, the AJ issued a decision on September 30, 2004,

and found that complainant established a prima facie case of reprisal

discrimination when in November 2001, she discovered medical records in

her employment file. The AJ determined that complainant established

she had engaged in prior EEO activity that resulted in the settlement

of an EEO complaint in 1997. The AJ further determined that in May

2001, complainant settled another EEO complaint which had �strikingly

similar� claims to the allegations in the instant appeal involving the

same supervisor. The AJ found that the complainant's version of the

events was more credible. Specifically, the AJ found the agency's

claim that complainant's medical records were accidently placed in her

employment file not worthy of belief. The AJ credited complainant's

testimony where she stated that she suspected that her supervisor

placed the medical records in her file; and that he had the means and

motive to do so. The AJ determined that while he would never be certain

how the medical records were placed in complainant's employment file,

that complainant has established beyond a preponderance of the evidence

that her supervisor placed the medical records in her employment file.

Moreover, the AJ determined that complainant demonstrated the agency's

failure to investigate the matter tolerated activity which would have

a chilling affect upon the EEO process.

As a remedy, the AJ determined that complainant was entitled to $15,000.00

in compensatory damages. The AJ found that complainant suffers from

major depression, post traumatic stress disorder, and generalized anxiety

disorder. The AJ further found that complainant's medical records

reflect that the matter that is the subject of the instant complaint

exacerbated her conditions and significantly delayed her improvement.

Following the AJ's September 30, 2004 decision, the agency issued a final

action on December 12, 2004, that did not implement the AJ's decision.

On appeal, the agency argues that there is no substantial evidence in

the record to support the AJ's finding of discrimination in reprisal for

prior protected activity. The agency further argued that the AJ erred by

finding retaliation because complainant did not establish a prima facie

case of reprisal by failing to show that placement of medical records in

an employee's file was an adverse action and that complainant established

a causal connection between the alleged incident and her prior EEO

activity. The agency requested that the Commission affirm its rejection

of the AJ's finding that the agency discriminated against complainant.

The agency also requested that the Commission affirm its rejection of

the AJ's order to pay complainant $15,000 in compensatory damages.

In a response dated February 7, 2005, complainant, through her attorney,

requested that the Commission reverse the agency's final action and

remand the matter to the agency to take remedial action and pay her

$15,000 in compensatory damages. Complainant further argued that the

AJ correctly applied the appropriate regulations, policies, and laws;

and reached the appropriate conclusion in her case.

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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, including complainant's arguments

on appeal, the agency's response thereto, and arguments and evidence

not specifically addressed in this decision, the Commission finds that

the AJ's decision summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. Therefore, we discern no

basis to disturb the AJ's decision. As such, the Commission REVERSES

the agency's final action and REMANDS the matter to the agency to take

remedial action in accordance with this decision and the ORDER below.

ORDER (C0900)

The agency is ordered to take the following remedial action:

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall pay complainant $15,000 in compensatory damages and

request an itemized petition of attorney's fees from complainant's

attorney. The attorney shall cooperate in providing the requested

information. Once the information is provided, the agency shall pay

complainant's attorney a reasonable amount of attorney's fees.

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.

POSTING ORDER (G0900)

The agency is ordered to post at its Oak Creek 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 (R0900)

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 action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar 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 (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

March 18, 2005

__________________

Date