01a41740
07-19-2005
Darlene Bunton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darlene Bunton v. United States Postal Service
01A41740
July 19, 2005
.
Darlene Bunton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41740
Agency No. 1C-443-0037-00
Hearing No. 220-A1-5193X
DECISION
Complainant filed an appeal from the agency's final action concerning
her equal employment opportunity (EEO) complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
The agency's final action implemented a default judgment issued by
an EEOC Administrative Judge (AJ) against the agency, due to it its
failure to respond to complainant's discovery requests and the AJ's
orders. The agency agreed to effect the remedies ordered by the AJ.
The complainant, however, seeks to have some of the remedies altered.
The sole issue before the Commission in this appeal is the adequacy of
the remedies. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Casual Clerk at
the Toledo Processing and Distribution Center, in Toledo, Ohio. On April
20, 2000, complainant filed a formal EEO complaint claiming that she
was the victim of unlawful employment discrimination on the bases of sex
and disability, when she was harassed by a co-worker and later terminated.
Following an investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ.
On September 25, 2003, the AJ issued a default judgment for complainant.
The AJ noted that the agency failed to respond to complainant's discovery
request; and that the AJ thereafter granted complainant's Motion to Compel
discovery, to which the agency again failed to respond. The AJ further
noted that on October 15, 2001 and January 20, 2002, complainant filed
Motions for Sanctions, without a response by the agency. Consequently, on
July 24, 2002, the AJ issued an order granting the Motion for Sanctions,
which the AJ indicated �included the agency's admissions� to the claims
raised in the instant complaint.
On June 12, 2003, a hearing was held regarding complainant's claim of
compensatory damages and attorney's fees and costs.
On September 25, 2003, the AJ issued a document identified as �Default
Judgment/Compensatory Damage Award/Attorney Fees and Costs Award.�
Therein, the AJ awarded complainant the following remedies:
(1) Reinstatement to the position of casual clerk;
(2) Back pay calculated from the date of her termination to the date
her casual appointment was to have expired;
(3) Any other employment benefits lost as a result of the agency's
action;
(4) The agency to post at its Toledo, Ohio facility copies of the
attached Notice in accordance with 29 C.F.R. � 1614.501 (a)(1) after
being signed by the Agency within thirty calendar days of the date of
this decision, which shall remain posted for sixty consecutive days,
in conspicuous locations, including all locations where notices to the
employees are customarily posted. The agency shall take reasonable
steps to ensure that said notices are not altered, defaced or obscured
by other materials.
The AJ also awarded attorney's fees and costs; $5,000.00 in non-pecuniary
damages; and $45.00 in pecuniary damages.
On November 4, 2003, the agency issued a final action implementing the
AJ's default judgment. The agency stated it would effect the actions
as ordered by the AJ.
Nonetheless, complainant filed the instant appeal. Complainant requests
that the Commission provide clarification and adjust some of the remedies
ordered. Regarding the remedy of reinstatement, complainant requests
reinstatement to a �casual clerk on tour,� a position she indicates that
she held when she left the agency.
Complainant further requests that the reinstatement be in a location
away from the identified harassing co-worker.
Finally, regarding the award of non-pecuniary ($5,000.00) and
pecuniary ($45.00) damages, complainant seeks to have them classified
as damages based on �personal physical injuries� or �physical sickness�.
Complainant states that if the damages were so identified, the award would
not be considered part of her gross income and subjected to income tax.
Because the agency admitted that it discriminated against complainant,
it is required to make her "whole" by restoring her to a position where
she would have been were it not for its unlawful acts.
Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418 (1975); Wrigley v. United States
Postal Service, EEOC Petition No. 04950005 (February 15, 1996).
First, as noted above, complainant requests changes to the AJ's order
of reinstatement to the position of casual clerk, by being placed into
a position as a �casual clerk on tour,� rather than a �casual clerk�
as specified by the AJ. Complainant does not describe the difference
between the two job titles, nor explain why she should be awarded �casual
clerk on tour.� Consequently, we do not find that the record warrants
such an alteration to the AJ's order.
Second, complainant seeks to have the harasser moved to a different
location. Complainant claimed that her co-worker hit her on the butt
with his cane at least three times; pulled her blouse; sat in the chair
next to complainant where her boyfriend had been sitting; walked around
and stopped in front of complainant's case three times in one day; yelled
loudly �all clerks work, fuck you� when complainant passed him on one day;
and on a separate occasion, was caught hiding behind equipment, watching
complainant and shouted �fuck you� loudly. Appropriate relief in cases
of harassment may include taking steps to ensure that the perpetrator of
harassment is no longer assigned to a common workplace with the victim.
See Guerra v. USPS, EEOC Appeal No. 01965639 (June 19, 1997). Because the
AJ's default judgment included the agency's admissions to complainant's
claims, we find that the events justify modifying the AJ's ordered
relief to ensure that the harasser has no contact with complainant
during working hours. Moreover, we determine that the relief should
also include training of the harasser as more fully discussed below.
Finally, the Commission declines complainant's request for the Commission
to classify the monetary award of damages as �personal physical injuries�
or as �physical sickness� because if the damages were so identified, the
award would not be construed as part of complainant's gross incomes and
would not therefore be subject to federal income tax. The Commission
determines that it is beyond its purview to categorize this award in
terms of its potential federal income tax ramifications.
Accordingly, the finding of discrimination is AFFIRMED and the relief
ordered is hereby MODIFIED.
ORDER
The agency is ordered to provide complainant with the following relief,
to the extent that it has not already done so:
(1) Reinstatement to the position of casual clerk;
(2) Back pay calculated from the date of her termination to the date
her casual appointment was to have expired;
(3) Any other employment benefits lost as a result of the agency's
action;
(4) The agency to post at its Toledo, Ohio facility copies of the
attached Notice in accordance with 29 C.F.R. � 1614.501 (a)(1) after
being signed by the Agency within thirty calendar days of the date of
this decision, which shall remain posted for sixty consecutive days,
in conspicuous locations, including all locations where notices to the
employees are customarily posted. The agency shall take reasonable
steps to ensure that said notices are not altered, defaced or obscured
by other materials;
(5) Pay attorneys fees and costs in the amount of $27,664.80; and
(6) Pay $5,000.00 in non-pecuniary damages and $45.00 in pecuniary
damages.
Additionally the Commission includes the following remedies:,
(7) In the event that the identified harasser remains in the agency's
employ, the agency shall take measures to assure that the identified
harasser shall not be permitted to work in the same workplace as
complainant, at the same time as complainant; and
(8) In the event that the identified harasser remains an agency employee,
the agency shall provide EEO sensitivity training with regard to Title
VII and harassment.
POSTING ORDER (G0900)
The agency is ordered to post at its Toledo Processing and Distribution
Center, in Toledo, Ohio, 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 19, 2005
__________________
Date