Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 20, 2013

0120113530 (E.E.O.C. Sep. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120113530

Hearing No. 430-2010-00324X

Agency No. 4K-280-0005-10

DECISION

Complainant filed an appeal with this Commission alleging that the Agency failed to comply
with its final action dated July 11, 2011, pursuant to 29 C.F.R. § 1614.504.

BACKGROUND

The record indicates that Complainant, a Transitional Employee (TE) City Carrier at the
Agency’s Post Office in Gastonia, North Carolina, filed a formal complaint alleging that the
Agency discriminated against her and subjected her to a hostile work environment on the bases
of race (Caucasian) and sex (female) as evidenced by multiple incidents including, inter alia,
being instructed to finish her route after her purse was stolen; being denied annual leave; and
unequal treatment regarding duty assignments and reporting times. In addition, Complainant
alleged that she was subjected to reprisal for prior protected EEO activity when she was
informed that she would not be reappointed as a Transitional Employee.1

The Administrative Judge (AJ) assigned to the case held a hearing on February 8, 2011, and
issued a decision on May 9, 2011. In the decision, the AJ initially found that Complainant had
not been subjected to a discriminatory hostile work environment. However, the AJ determined
that the Agency had retaliated against Complainant for her protected EEO activity when
management informed her that she would not be reappointed. The AJ found that

1 The Administrative Judge determined that reprisal was an appropriate basis of discrimination
based on the documentary and testimonial evidence presented at the hearing and allowed the
complaint to be subsequently amended.
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Complainant’s term of employment had previously been renewed twice and Complainant
testified that she was advised that her employment would be renewed again. Nonetheless,
weeks after informing management that she would be filing an EEO complaint, Complainant
was informed that she would not be reappointed. The AJ concluded that the Agency’s
explanation for not renewing Complainant’s term of employment was neither credible nor
supported by the record evidence. As a result, the AJ held that the Agency had retaliated
against Complainant for her protected EEO activity.

To remedy the discrimination, the AJ ordered the Agency to immediately appoint Complainant
to an available TE City Carrier position or similar position within a reasonable driving distance
of Complainant’s residence with a term not to exceed one year from the date of appointment.
In lieu of reappointment, the AJ noted that Complainant could elect to receive one year of front
pay equal to the last hourly rate she would have received if she would have been reappointed in
October 2009. Finally, the AJ ordered the Agency to provide training to the responsible
management officials and take appropriate preventative steps to ensure no employee is
subjected to discrimination.

The Agency subsequently issued a Notice of Final Action adopting the AJ’s decision and
agreeing to implement the relief ordered. On May 31, 2011, the Agency sent Complainant a
letter informing her that she would be appointed to a not-to-exceed one year TE Carrier
position at the Lancaster, South Carolina Post Office on June 4, 2011.

Complainant filed the instant appeal claiming that the Agency failed to comply with the AJ’s
order. Complainant argues that the AJ’s decision provided that she could elect to accept front
pay in lieu of reappointment and that she informed the Agency that she elected to receive front
pay. Complainant contends that the Agency has not complied with the AJ’s decision because it
has only offered her reappointment. Accordingly, Complainant requests that the Commission
find that the Agency has not complied with the AJ’s order and grant her front pay in lieu of
reinstatement. In response, the Agency contends that it has fully complied with the AJ’s order
by offering Complainant reappointment to a TE Carrier position within a reasonable driving
distance from her residence.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.504 provides that final action which has not been the
subject of an appeal or civil action shall be binding on the Agency, and that if Complainant
believes that the Agency has failed to comply with the terms thereof, Complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30 days of when
Complainant knew or should have known of the alleged noncompliance. If, after 30 days from
the date of the Agency's receipt of the Complainant's written allegations of noncompliance,
Complainant is not satisfied with the Agency's attempt to resolve the matter, Complainant may
appeal to the Commission for a determination as to whether the Agency has complied with the
terms of its decision. 29 C.F.R. § 1614.504(b).

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As an initial matter, the Commission finds that the AJ erred in awarding Complainant the
option to elect to receive front pay in lieu of reappointment. Front pay is a form of equitable
relief that compensates an individual when reinstatement is not possible in certain limited
circumstances. The Commission has identified three circumstances where front pay may be
awarded in lieu of reinstatement, i.e., (1) where no position is available; (2) where a
subsequent working relationship between the parties would be antagonistic; or (3) where the
employer has a record of long-term resistance to anti-discrimination efforts. See Tyler v. U.S.
Postal Serv., EEOC Request No. 05970340 (Feb. 1, 1998). Awards of front pay imply that
the complainant is able to work but cannot do so because of circumstances external to the
complainant. See Goetze v. Dep’t of the Navy, EEOC Appeal No. 01991530 (Aug. 22,
2001).

In the instant case, the Agency offered Complainant reappointment to a not-to-exceed one year
TE position in a separate location from where the discrimination occurred. Complainant has
presented no arguments that reappointment was inappropriate based on one of the above-
mentioned limited circumstances. Complainant presented no other challenges to the Agency's
compliance with the relief ordered. Accordingly, the Commission finds that reappointment
was the proper remedy. In light of the confusion generated by the AJ’s error, we direct the
Agency to re-offer Complainant the appointment, consistent with the ORDER below.

ORDER

Within 120 days of this decision becoming final, the Agency shall offer Complainant a TE City
Carrier position or similar position within a reasonable driving distance of Complainant’s
residence, with a term not to exceed one year from the date of appointment. The date of
appointment must be at least thirty (30) days from the date of the offer. Complainant shall
have fifteen days from the date of the offer to accept or reject the offer. If Complainant fails
to respond to the offer within fifteen days, without good cause shown, the Agency shall deem
the offer rejected.

IMPLEMENTATION OF THE COMMISSION'S DECISION

(K0610)
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 77960, Washington, DC
20013. 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
0120113530

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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

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(S0610)
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
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

September 20, 2013
Date