0120063696
11-10-2008
David L. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David L. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200636961
Hearing No. 260-2006-00010X
Agency No. 4E-553-0007-05
DECISION
On June 7, 2006, complainant filed an appeal from the agency's May 24,
2006 notice of final action concerning his equal employment opportunity
(EEO) complaint alleging 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Mail Processing Clerk, PS-05, at the agency's Minneapolis
Processing and Distribution Center (P&DC). Complainant has been trying
since 2000, to transfer from the Minneapolis P&DC to a facility in the
agency's Mississippi District to be near his 85-year-old father who has
vision problems. Complainant has filed numerous discrimination complaints
against the agency. On November 26, 2003, one of complainant's complaints
went to a hearing. This complaint involved a claim that complainant was
denied a transfer to the Mississippi District based on discrimination.
The Lead Personnel Specialist was named as the responsible management
official (RMO1) and testified at the hearing on behalf of the agency.
In 2004, complainant began submitting his requests to transfer to
Mississippi through the agency's eReassign system. Complainant submitted
eight transfer requests between March 20, 2004, and December 12, 2004.
All of the transfer requests went through RMO1. The eReassign program
required all transfers to remain in the system for one year. In addition
to filing transfer requests via eReassign, complainant also wrote the
Manager of Human Resources (HR Manager) for the Mississippi District on
June 23, 2004, and July 9, 2004, regarding his request to transfer to the
Mississippi District. The HR Manager forwarded the letters to RMO1.
Thereafter, on June 23, 2004, complainant requested a hardship transfer
due to his father's vision problems. Complainant received no response
from the agency to this hardship request, other than a return receipt.
Also, in June 2004, complainant went to Mississippi and visited several
agency facilities to inquire about a transfer. Complainant again visited
Mississippi in December 2004, to look for employment with the agency.
In a complaint dated March 4, 2005, complainant alleged that he was
discriminated against on the bases of race (African-American), sex (male),
color (black), age (48), and in reprisal for prior protected activity
under Title VII when: the agency denied his transfer request to Marks,
Clarksdale or Batesville, Mississippi in 2004.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on March 28, 2006. The AJ
issued a decision on May 1, 2006, finding complainant failed to produce
evidence that he was not allowed to transfer to the Mississippi District
because of his age, race, sex or color. However, the AJ found complainant
showed that he was denied a transfer in retaliation for his previous EEO
activity. As relief, the AJ ordered the agency to transfer complainant
immediately to a position in a post office within 45 miles of Marks,
Mississippi for which he at least meets the minimum qualifications and
which provides at least 30 hours a week of work. The AJ also ordered
the agency to pay complainant $2,000.00 for non-pecuniary, compensatory
damages.
On May 24, 2006, the agency simultaneously issued a notice of final action
rejecting the AJ's finding that complainant proved that he was subjected
to discrimination in retaliation for his prior protected activity and
filed an appeal with the Commission. Thereafter, on November 17, 2006,
the agency withdrew its appeal of the AJ's finding of retaliation, and
the Commission closed the agency's appeal under EEOC Appeal No. 0720060066
(January 25, 2007).
Complainant filed the present appeal on June 7, 2006, following
his receipt of the agency's May 24, 2006 notice of final action.
On appeal complainant requests an expansion of the relief ordered by
the AJ, including a "Restrictive Injunction against firing, harassing,
retaliation and discrimination." Additionally, complainant requests the
"monetary settlement" be increased to $43,000.00.
ANALYSIS AND FINDINGS
The Commission notes that in this case several witnesses testified via
telephone. The Commission has held that testimony may not be taken by
telephone in the absence of exigent circumstances, unless at the joint
request of the parties and provided specified conditions have been met.
See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521
(May 17, 2006).2 However, since the facts of this case pre-date Louthen,
we will assess the propriety of conducting the hearing telephonically
by considering the totality of the circumstances. Here, it is unclear
whether exigent circumstances existed. On the other hand, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of testimony telephonically, and neither party
objected to the manner in which those witnesses testified. Under these
circumstances, even if it is assumed that the AJ abused her discretion
in this case by taking testimony telephonically, the Commission finds
that this action constituted harmless error.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
As an initial matter, we find that as neither party disputes the AJ's
finding of discrimination, we affirm that determination herein.3
Upon review, we find the AJ's award of $2,000.00 in compensatory damages
was supported by substantial evidence. Further, complainant's request
for a "restrictive injunction" is denied and we note that retaliation
against protected EEO activity is already prohibited by law.
CONCLUSION
Accordingly, the agency's notice of final action finding discrimination in
retaliation for prior protected activity and finding no discrimination
based on race, color, sex and age is AFFIRMED. The AJ's relief, as
slightly modified, is restated in the Order herein.
ORDER
To the extent it has not already done so, the agency shall take the
following actions:
1. Within 60 days of the date this decision becomes final, the agency
shall pay to complainant $2,000.00 in non-pecuniary, compensatory
damages.
2. Within 60 days of the date this decision becomes final, the agency
shall transfer complainant to a post office in the Mississippi District
that is within 45 miles of Marks, Mississippi. Complainant is to be
transferred into a position in which he meets the minimum qualifications
and which provides at least 30 hours of work per week.
3. Within 180 days of the date this decision becomes final, the agency
shall provide training to all management officials responsible for the
retaliation found to have occurred in this complaint regarding their
obligations not to retaliate against individuals for engaging in protected
EEO activity.
4. Within 180 days of the date this decision becomes final, the
agency shall consider taking appropriate disciplinary action against
any agency employees responsible for the retaliation found to have
occurred in this complaint. The agency shall report its decision to the
compliance officer. 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. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
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
agency's payment of the above reference compensatory damages and that
the above ordered corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Minneapolis Processing and
Distribution Center in Minneapolis, Minnesota 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 (K0408)
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 (M0408)
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 (T0408)
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 (Z1008)
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
November 10, 2008
__________________
Date
1 This case has been redesignated with the above-referenced appeal
number.
2 "In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless,
as is found in this case." Sotomayor v. Department of the Army, EEOC
Appeal No. 01A43440 (May 17, 2006).
3 Also, we do not address the other bases of discrimination as complainant
does not appeal any issue concerning such bases.
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0120063696
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063696