07A30007
09-29-2003
Deanna Schlieter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Deanna Schlieter v. United States Postal Service
07A30007
September 29, 2003
.
Deanna Schlieter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 07A30007
Agency No. 1I-533-0004-00
Hearing No. 260-A1-9080X
DECISION
Following its April 15, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of her sex and in reprisal for prior
EEO activity under Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The agency also requests that the
Commission affirm its rejection of the AJ's order to provide complainant
with compensatory damages and attorney's fees. For the following reasons,
the Commission reverses the agency's final order, and modifies the AJ's
award of damages.
Complainant, a Distribution Clerk, PS-5, employed at the agency's
Air Mail Facility located in Milwaukee, Wisconsin, filed a formal EEO
complaint with the agency on June 19, 2000, alleging that the agency
had discriminated against her on the basis of her sex and in reprisal
for prior EEO activity when:
(1) on March 29, 2000, complainant was issued a letter of warning for
entering the men's locker room; and
she was harassed from the date of the locker-room incident (March 11,
1999) until April 4, 2000.<1>
At the conclusion of the investigation, complainant was provided a copy of
the investigative report and requested a hearing before an AJ. The agency
filed a motion to dismiss on January 22, 2002, which the AJ denied.
Following a hearing, the AJ found the following: In November 1994,
a policy was posted forbidding employees of the opposite sex from
entering locker rooms. At some point, that posting was missing from the
bulletin board and another was posted on March 16, 2000. On March 11,
1999, complainant was training a part-time female employee and needed
an additional chair. Complainant saw many unused chairs through the
open door of the men's locker room. Before entering the locker room to
retrieve a chair, complainant knocked on the door and asked if anyone
was present. A private airline employee (PAE), who was exiting the
locker room, and a second male voice from inside the locker room informed
complainant that she could enter. However, when complainant stepped
into the locker room, an Acting Supervisor (AS1) appeared fully dressed
from the rear of the locker room. Although complainant apologized, the
AS1 was visibly upset. The AS1 approached the 204B Supervisor (204B)
claiming that he was just finishing getting dressed, when complainant
entered the locker room. The AS1 �wanted some kind of action taken�
because a male would be disciplined for walking into the women's
locker room. AJ Decision at 4. The AS1 also stated that he intended
to take some kind of disciplinary action if the 204B did not. The 204B
forwarded a statement of the incident to the Plant Manager (PM), who
assigned the Supervisor of Distribution Operations (SDO) to investigate.
After speaking with both parties, the SDO recommended complainant should
received a letter of warning, which complainant received on March 29,
2000. On May 16, 2000, as a result of the settlement of complainant's
grievance, the PM agreed to remove and rescind the letter of warning.
In regard to complainant's claim of harassment, the AJ found the
following: Complainant alleged in her affidavit that after she entered the
men's locker room, agency officials condescended to her, joked with her
less, failed to give her assistance on the express rack, and questioned
the amount of mail she processed and the amount of time taken for lunch.
Further, she was not allowed to have food or beverages at her desk,
was required to get permission to use her cell phone, was criticized
for wearing T-shirts not purchased with her clothing allowance, and was
questioned about the whereabouts of her identification badge. At the
hearing, complainant testified that these actions began after she gave a
statement in support of her co-worker's (CW1) EEO complaint and grievance.
The AJ found that complainant established a prima facie case of sex and
reprisal discrimination in regard to the letter of warning. The AJ found
that the agency articulated a legitimate, nondiscriminatory reason for
its actions. Specifically, the management officials contended that
complainant's actions contravened the agency's policy as provided in
a memorandum that was issued by the PM in May of 1995 (memorandum) to
supervisors, reiterating the prohibition of entering locker rooms of
the opposite sex and in the Employee Labor Relations Manual. However,
the AJ concluded that complainant established, by a preponderance of
the evidence, that the reasons provided by the agency were pretexts
for discrimination. In so finding, the AJ found, among other things,
that the memorandum to supervisors provided that these situations were
to be investigated and taken seriously. AJ Decision at 7. However,
the AJ found that the agency did not conduct a proper investigation in
regard to the locker room incident.<2> Additionally, according to the
PM's testimony, when discussing the letter of warning the SDO stated
that complainant entered the locker room and �there was no documentation
of anybody saying it was all clear for her to go in there or anything
of that nature.� AJ Decision at 8. However, the PAE testified that
complainant had asked to enter the locker room and he and another male,
who was fully dressed, indicated that she could enter. The AJ also
found that the agency did not follow regular procedures of reprimanding
an employee with no previous disciplinary record. The union steward
testified that a job discussion or counseling was generally the first form
of discipline depending on the severity of the offense, whereas a letter
of warning was the next level. AJ Decision at 9. Complainant did not
have any record of having been previously disciplined. The AJ found that
when complainant entered the men's locker room after asking permission
to enter, as women regularly did, she did not commit a sufficiently
severe offense to warrant a letter of warning. Id. Further, the AJ
found that complainant's witnesses all credibly testified that from 1999
until complainant received the letter of warning, management was aware
that women regularly entered the men's locker room to use the microwave,
coffee machine, and chairs located within, whereas men did not regularly
enter the women's locker room. AJ Decision at 10. Ultimately, the AJ
determined that complainant presented sufficient evidence to discredit
the agency's articulated reasons for its actions. In regard to the
harassment claim, the AJ found that complainant failed to demonstrate
that the complained-of incidents were sufficiently severe or pervasive
to establish harassment on either basis.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by denying its motion to dismiss, alleging
that complainant filed a case in Federal District Court involving the same
grounds as in this case. Further, the agency argues that complainant
did not suffer an adverse employment action; no causal connection
existed between her prior protected activity and the letter of warning;
and the agency articulated legitimate, non-discriminatory reasons for
its issuance of the letter. On appeal, complainant argues that the AJ
properly determined that the agency discriminated against complainant, but
erred in determining that the agency did not illegally harass complainant.
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, regardless of whether a hearing was held.
Preliminarily, we address the agency's contention that the AJ erred in
denying its motion to dismiss. The agency argues that this case should
have been dismissed because complainant filed a complaint in the Federal
Eastern District Court of Wisconsin which raised factual allegations
that are the same as those raise in the instant case. The AJ concluded
that the two cases at issue raised different factual allegations since
the claims raised in the Federal District Court involve �complainant's
transfer from the airport facility and alleged demotion and whether the
[a]gency failed to accommodate her in her return to work.� AJ Decision
at 2, n.1. To determine if a civil action involves the same claims as
the administrative complaint, the Commission will look to the underlying
factual allegations and not the legal bases claimed or remedies sought.
Leistiko v. Secretary of the Army, EEOC Appeal No. 01922631 (December 10,
1992); Stup v. United States Postal Service, EEOC Appeal No. 01980238
(July 27, 1998). While evidence of record shows that complainant's
case in federal court stems from the alleged discrimination that is at
issue in this case, the Commission declines to find that the claims are
factually similar. Therefore, the AJ appropriately denied the agency's
motion to dismiss.
Letter of Warning
A claim of disparate treatment is examined under the three-part analysis
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993). Although the burden of production, in other
words, "going forward," may shift, the burden of persuasion, by a
preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
In order to establish a prima facie case of discrimination based on sex,
complainant must show that she is a member of a protected group and that
she was subjected to an adverse employment action. Packard v. Department
of Health & Human Services, EEOC Appeal Nos. 01985494, 01985495 (March
22, 2001). She must also show either that she was treated less favorably
than other similarly situated employees outside of her protected group,
id., or must present other, noncomparative evidence which supports an
inference that the agency was motivated by unlawful discrimination.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312
(1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002, at n.4 (September 18, 1996).
Similarly, in a reprisal claim, according with the burdens set forth in
McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 20, 1997), complainant may establish a prima facie
case of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 26, 2000).
Upon review, we concur with the AJ that complainant established prima
facie cases of sex and reprisal discrimination. In regard to her prima
facie case of sex discrimination, complainant established that she
is a member of a protected class (female), and she was subjected to an
adverse employment action.<3> Although no comparator exists, complainant
presented evidence that raised an inference of sex discrimination.<4>
Complainant was the only full-time female employee in the distribution
area, and when she first came to the agency in 1994, the AS1 explained
that she was now in a �country boys club.�
With regard to her prima facie case of reprisal discrimination, the AJ's
finding that complainant established a prima facie case is supported by
substantial evidence. Complainant participated in protected EEO activity
on February 4, 2000, when she provided a statement as a witness, on behalf
of CW1, to a sexual harassment incident involving a supervisor (S1)
entering the women's locker room looking for CW1 while she was getting
dressed.<5> The record reflects that management officials had knowledge
of complainant's prior EEO activity. The AJ found that thereafter,
complainant was subjected to an adverse employment action when she was
given a letter of warning on March 29, 2000. Further, the AJ's finding
that a nexus existed is supported by substantial evidence because the
very short period of time between the prior EEO activity and the letter of
warning was sufficient to support an inference of retaliatory motivation.
The AJ determined that complainant proffered sufficient evidence to
discredit the agency's articulated reasons. The Supreme Court held that
pretext may be proven where:
�[t]he factfinder's disbelief of the reasons put forward by the [employer]
(particularly if disbelief is accompanied by a suspicion of mendacity)
may together with the elements of the prima facie case, suffice to
show intentional discrimination. Thus, rejection of the [employer's]
proffered reasons will permit the trier of fact to infer the ultimate
fact of intentional discrimination.�
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Accordingly,
we conclude that complainant established by a preponderance of the
evidence that the reasons given by the agency were pretexts for
discrimination. See Reeves v. Sanderson Plumbing Products Inc., 530
U.S. 133 (2000). After a careful review of the record, we discern no
basis to disturb the AJ's finding of discrimination on the bases of sex
or reprisal.
Harassment
In any case involving a claim of harassment, the challenged conduct must
be judged by looking at all of the circumstances including the frequency
of the conduct, its severity, whether it is physically threatening or
humiliating, or a mere offensive uttering; and whether it unreasonably
interferes with an employee's work performance. Faragher v. Boca Raton,
524 U.S. 775, 787-788. In order to establish a claim of harassment based
on sex and reprisal, complainant must show conduct: (1) sufficiently
severe or pervasive to alter the conditions of her employment; and (2)
based on her membership in a protected class. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993). The conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 (March 8, 1994).
We concur with the AJ's findings that the agency is not liable for
harassing complainant. In so finding, we note that the complained-of
incidents were not sufficiently severe or pervasive to interfere with
complainant's work performance and/or create an intimidating, hostile,
or offensive work environment. After a careful review of the record,
the Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision.
Remedies
After a separate hearing on damages, the AJ determined that complainant
was entitled to $6,000.00 in non-pecuniary compensatory damages, $386.75
in pecuniary damages, 16 hours of leave restored as equitable relief,
and $25,275.92 in attorney's fees. The agency argues on appeal that
the AJ erred in awarding excessive non-pecuniary compensatory damages
and attorney's fees. Complainant counter appeals that the non-pecuniary
damages should be doubled, that pecuniary damages and equitable relief
should be increased, and the entire amount of requested attorney's fees
should be awarded.
The Commission is authorized to award compensatory damages are part of the
�make whole� relief for intentional discrimination. Compensatory damages,
however, are limited to the amount necessary to compensate an injured
party for actual harm caused by the agency's discriminatory action, even
if the harm is intangible. Damiano v. United States Postal Service, EEOC
Request No. 05980311 (February 26, 1999). Compensatory damages should
consider the extent, nature and severity of the harm and the length of
time the injured party endured the harm. Id.; Compensatory and Punitive
Damages Available under Section 102 of the Civil Rights Act of 1991, EEOC
Notice No. 915.002 (July 14, 1992), at 11-12, 14 (Enforcement Guidance).
Compensatory damages �are awarded to compensate a complaining party for
losses or suffering inflicted due to the discriminatory act or conduct,�
and ��may be had for any proximate consequences which can be established
with requisite certainty.'� Enforcement Guidance, 4. Compensatory
damages include �damages for past pecuniary loss (out-of-pocket loss),
future pecuniary loss, and nonpecuniary loss (emotional harm).� Id.
The Commission has the authority to award compensatory damages in the
administrative process. West v. Gibson, 119 S.Ct. 1906 (1999). For an
employer with more than 500 employees, such as the agency, the limit of
liability for future pecuniary and non-pecuniary damages is $300,000.
42 U.S.C. � 1981a(b)(3).
A proper award of non-pecuniary compensatory damages, the amount of
the award should not be �monstrously excessive� standing alone, the
product of passion or prejudice, and consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989). In this case, the AJ found that a
nexus existed between the letter of warning and complainant's suffering.
After the receipt of the letter of warning, complainant became tearful,
anxious, nervous, and had difficulty sleeping. She was diagnosed with
panic attacks and depression related to work. Complainant also suffered
from panic attacks that lasted 20 to 25 minutes and were accompanied by
sweating, chest pains, and difficulty breathing. Complainant's doctor
testified that there is no positive cure for panic disorder and some
individuals have repeated attacks. Complainant sought the advice of
her pastor, a counselor and a psychiatrist. Complainant continues to
take medication daily. Complainant also testified that she became
uncomfortable with large groups, became reserved around people,
and no longer participated in social activities. Complainant also
stated that she continued to seek on-going treatment with a counselor.
Based on similar Commission decisions, we find that the AJ did not
err when she awarded complainant $6,000.00 in non-pecuniary damages.
See Sullivan v. United States Postal Service, EEOC Appeal No. 01995773
(December 12, 2001) ($7,500.00 awarded in non-pecuniary damages where
supervisor's retaliatory remarks caused complainant to become depressed
and �break down�); Benson v. Department of Agriculture, EEOC Appeal
No. 01952854 (June 27, 1996) ($5,000.00 in non-pecuniary damages awarded
where complainant suffered from humiliation and embarrassment at work);
Rountree v. Department of Agriculture, EEOC Appeal No. 01941306 ( July
5, 1995) ($8,000.00 awarded in non-pecuniary damages where complainant
suffered from emotional distress).
In regard to pecuniary damages, the AJ determined that complainant was
entitled to 50% of the requested sum because the letter of warning,
the issuance of which triggered psychological and emotional harm, was
rescinded on May 16, 2000. Pecuniary losses are out-of-pocket expenses
that are incurred as a result of the employer's unlawful action,
including moving expenses, medical expanses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of-pocket expenses.
Enforcement Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002
(July 14, 1992), at 14. Past pecuniary losses are losses incurred prior
to the resolution of a complaint through a finding of discrimination, the
issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9.
For claims seeking pecuniary damages, such objective evidence should
include documentation of out-of-pocket expenses for all actual costs and
an explanation of the expense, e.g., medical and psychological billings,
other costs associated with the injury caused by the agency's actions,
and an explanation for the expenditure. Id. at 9. Complainant must prove
that the agency's discriminatory actions were the cause of her loss. Id.
Regardless of the fact that the letter of warning was rescinded, there
is sufficient evidence of record to show that complainant continued to
incur these costs as a result of the agency's discriminatory action of
issuing the letter of warning. Complainant's doctor testified that the
issuance of the letter of warning was the triggering event in the decline
of her mental health and her need for mental treatment. As a result,
we find that the AJ erred in reducing the amount of pecuniary damages
by 50% and we award complainant the entire amount of the requested
$360.00 in medical costs; $254.08 in mileage expenses; $20.50 for
parking; and $138.93 in photocopying costs, for a total of $773.51 in
pecuniary damages. We affirm the AJ's decision not to allow complainant's
remaining costs because they were incurred in pursuit of her Office of
Workers' Compensation Program claim or were not sufficiently documented
in the record. Further, in regard to complainant's contention that the
AJ erred in restoring only 16 hours of her leave as equitable relief,
the Commission finds that the AJ appropriately calculated this amount.
In so finding, we note that the record reflects that complainant's doctor
testified that complainant took leave largely due to a perceived hostile
work environment.
Title VII authorizes the award of reasonable attorney's fees, including
for an attorney's processing of a compensatory damages claim. 29 C.F.R. �
1614.501(e). The fact that the complainant did not prevail on every
aspect of her complaint does not, in itself, justify a reduction in
the hours expended where the claims are intertwined, and it would be
impossible to segregate the hours involved in each claim. It is true that
attorney's fees may not be recovered for work on unsuccessful claims.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Courts have held that
fee applicants should exclude time expended on "truly fractionable"
claims or issues on which they did not prevail. See National Association
of Concerned Veterans (NACV) v. Secretary of Defense, 675 F.2d 1319,
1337 n. 13 (D.C. Cir. 1982). Claims are fractionable or unrelated when
they involve "distinctly different claims for relief that are based on
different facts and legal theories." Hensley, 461 U.S. at 434-35. In the
instant case, we find that the AJ properly determined that complainant's
successful and unsuccessful claims of discrimination were sufficiently
distinct to reduce the requested amount of attorney's fees by 50%.
Complainant's claim of disparate treatment in the letter of warning
incident and the claim of harassment are factually distinct and rely on
separate legal theories, each capable of standing alone. Additionally,
the AJ's further reductions for work conducted on the OWCP claim, and
photocopying costs was appropriate.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
reverses the agency's final order rejecting the AJ's finding of
discrimination on the basis of complainant's sex and in reprisal for
prior protected EEO activity in violation of Title VII. The AJ's award
of damages is also modified. The agency is directed to take remedial
action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following action within thirty (30)
days of the date this decision becomes final:
The agency shall take corrective, curative and preventive action to ensure
that discrimination does not recur. This includes, but is not limited
to, providing training to the relevant management officials, regarding
their responsibilities with respect to eliminating discrimination in
the federal workplace. The training must place a special emphasis on
the agency's obligations under Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. 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 shall pay complainant $6,000.00 in non-pecuniary compensatory
damages, $773.51 in pecuniary damages, restore 16 hours of leave as
equitable relief, and pay $25,275.92 in 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 Air Mail Facility, located in
Milwaukee, Wisconsin, 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)), 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.
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:
September 29, 2003
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
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 the Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq., has occurred at the United
States Postal Service Air Mail Facility, located in Milwaukee, Wisconsin
(hereinafter, the 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 privileges of employment.
The facility was found to have unlawfully discriminated against one of
its employees on the basis of sex and in reprisal for prior protected
EEO activity. The agency has remedied the discrimination by providing
the individual with relief, including proven compensatory damages,
pecuniary damages, and attorney's fees, providing relevant agency
officials with EEO training, and taking relevant disciplinary action.
The facility will ensure that officials responsible for personnel actions
and terms and conditions of employment will abide by the requirements
of the Federal equal employment opportunity laws.
The facility 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 participates in proceedings
pursuant to, Federal equal employment opportunity law.
____________________
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 Complainant withdrew her claim of age discrimination during the hearing.
AJ Decision at 2, n.2.
2 After the incident and a request for discipline was initiated,
the PM instructed the SDO to locate the PAE. The SDO told the PM
that he was unable to ascertain the name of the employee. However,
the SDO testified that he never attempted to locate the employee or do
any type of investigating beyond speaking to complainant and the AS1.
AJ Decision at 8.
3 The agency argues that because the letter of warning was later
rescinded, complainant was not subjected to an adverse employment
action. Although there are decisions where the EEOC has determined
that a rescinded letter of warning to be a moot issue, the Commission
has held that an AJ must address the issue of compensatory damages
when a complainant shows objective evidence that she has incurred
compensatory damages, and that the damages are related to the alleged
discrimination. Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992), req. for recons. den., EEOC Request
No. 05930306 (February 1, 1993). Should complainant prevail on this
complaint, the possibility of an award of compensatory damages exists.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(December 9, 1993). Because complainant requested compensatory damages,
the next inquiry is whether complainant could provide some objective
proof of the alleged damages incurred, as well as objective evidence
linking those damages to the adverse actions at issue. See Allen
v. United States Postal Service, EEOC Request No. 05970672 (June
12, 1998); Benton v. Department of Defense, EEOC Appeal No. 01932422
(December 3, 1993). As the issue of compensatory damages still exists,
we find that a dismissal of the claim on the grounds that it was rendered
moot because the letter of warning was rescinded, would be improper.
See Rouston v. National Aeronautics and Space Administration, EEOC
Request No. 05970388 (March 18, 1999).
4 Although another male employee was issued a letter of warning for
entering the women's locker room, complainant was not similarly situated
with him because he was a supervisor, while she was a distribution
clerk with no previous discipline. It is well established that in order
for comparative evidence relating to other employees to be considered
relevant, all relevant aspects of the employees' work situation must
be identical or nearly identical, i.e., that the employees report to
the same supervisor, perform the same job function, and work during
the same time periods. See Anderson v. Department of Treasury, EEOC
Appeal No. 01A22092 ( March 13, 2003); Stewart v. Department of Defense,
EEOC Appeal No. 01A02890 (June 27, 2001); Jones v. United States Postal
Service, EEOC Appeal No. 01983491 (April 13, 2000).
5 On February 16, 2000, S1 received a letter of warning for entering
the women's locker room.