07A20004
09-22-2003
Debra G. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debra G. Jones v. United States Postal Service
07A20004
09-22-03
.
Debra G. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20004
Agency No. 4G-720-0101-99
Hearing No. 250-A0-8148X
DECISION
Following its September 28, 2001 Notice of Final Action, the agency
filed a timely appeal that 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 finding that
the agency discriminated against complainant on the bases of her race
and disability. For the following reasons, the Commission REVERSES the
agency's final action.
Complainant is a City Carrier in the agency's post office in Fort
Smith, Arkansas. According to complainant, including herself, there
were only three Black employees at the facility. On February 27, 1999,
while off-the-clock, she had a stroke. On April 6, 1999, she submitted
a medical clearance form to the agency's occupational health nurse, B-1.
B-1 informed A-1, complainant's supervisor, and A-2, the Postmaster, that
complainant had provided the proper medical paperwork and could return to
work, on April 12, 1999, if work within her restrictions was available.<1>
On April 12, 1999, complainant attempted to return to work and was told
by A-1 to clock off and go home until he was able to determine whether
any work was available within her restrictions. On April 14, 1999,
complainant's physician provided information indicating that complainant
was not experiencing side effects such as fatigue and drowsiness from
her medication. A-1, on April 22, 1999, informed complainant that no
work was available within her medical restrictions.
On May 10, 1999, complainant submitted a new medical restriction form
that contained the same restrictions as those listed on her April 6,
1999 medical clearance form. On June 14th, A-1 requested more complete
information from the complainant concerning her current restrictions. In
a July 11, 1999 letter, A-1 indicated that he had been unsuccessful in
obtaining information from complainant. On July 29, 1999, complainant
submitted a medical restriction form indicating that the following
restrictions had changed: walking had increased from one intermittent
hour to four intermittent hours; standing from one intermittent hour
to four intermittent hours; and data entry from one intermittent hour
to four intermittent hours. As a result of these changes, complainant
returned to work part-time in August 1999. Several weeks later, she
returned to work full-time with no restrictions.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an Administrative Judge (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). Here, the
AJ, after a hearing, found that complainant was discriminated against
on the bases of her race and due to a perception that she was disabled
when she was denied light duty for a period of four months.<2> As noted
above, the agency rejected the AJ's findings and filed this appeal.
Although A-1 and A-2 maintained that there was no work available within
complainant's medical restrictions, the AJ found that the agency did not
provide a legitimate non-discriminatory reason for its action. The AJ
noted testimony from witnesses about the informal system for granting
light duty even for those employees with significant restrictions.
For example, the AJ noted the testimony of a white, female letter
carrier for whom management found light duty work when she could not
walk in the later stages of her pregnancy. In addition, there was
testimony of an employee who had epileptic seizures and could not drive.
Arrangements were made, however, to have the mail brought to her at
various points along her route. According to the AJ, A-1 and A-2 did
not treat complainant the same way they treated other employees. The AJ
also noted that both A-1 and A-2 testified that, prior to complainant's
case, they had never denied light duty to an employee. The AJ found that
there was no evidence that, in complainant's case, A-1 went through the
deliberative process that was required under the Collective Bargaining
Agreement and local memorandums of understanding to determine whether
he could find light duty.
The AJ also found that A-1 and A-2's concerns for complainant's safety
were �so extreme as to be lacking in credibility, particularly in light
of the testimony of [B-1] and the witnesses who were on a variety
of medications that had side effects similar to the complainant's
medications while they were on light duty.� Finally, the AJ did not
find credible A-1's testimony that he attempted to contact complainant
in order to receive updated information on her medical condition, but
was unsuccessful. The AJ noted that A-1 knew where the union steward,
the union president and complainant were located. A-1 also failed to
produce the letters that he claimed were sent to complainant.
In finding discrimination, the AJ ordered the agency to:
1) pay complainant $4,688.12 in back pay;
2) pay complainant $15,000.00 in non-pecuniary damages;
3) pay complainant $12,168.09 in attorney fees and costs.
At the outset, we find that there is substantial evidence in the record
to support the AJ's determination that complainant was discriminated
against on the basis of race. The AJ correctly applied the appropriate
regulations, policies, and laws. Thus, we discern no reason to disturb
the AJ's finding of race discrimination.<3> On appeal, the agency argued,
in pertinent part, that: (1) the record did not contain substantial
evidence to support the AJ's finding of race discrimination; and (2)
the AJ's award of $15,000.00 in non-pecuniary damages was excessive.
The agency maintains that the record does not contain substantial evidence
to support the AJ's finding of discrimination based on race because
there was no evidence presented of a similarly situated White employee.
We note, however, that the Commission has long held that to establish
a prima facie case, complainant need only present evidence that, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). Here, complainant established that she, a Black employee,
was denied light duty while White employees received light duty. Thus, we
find that a prima facie case of race discrimination has been established.
We agree with the agency, however, that the AJ erred in finding that
it had not provided a legitimate non-discriminatory reason for denying
complainant's request for light duty, i.e., there was no work available
within complainant's medical restrictions. The AJ's finding that this
assertion lacked credibility should more accurately be viewed as a finding
of pretext. Despite our finding that the agency provided a legitimate,
nondiscriminatory reason for not providing light duty, we find that, for
the reasons listed above, there is substantial evidence contained in the
record to support what was in essence a finding of pretext by the AJ and
his ultimate finding of discrimination based on race. In St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993), the Court held that a fact finder
is not required, as a matter of law, to find discrimination whenever it
finds that an employer's explanation for its actions is not credible.
Id. at 519. The Court, however, made clear that a fact finder might
find discrimination in such circumstances. Id. at 524. The critical
factor is that a fact finder must be persuaded by the complainant that
it was discrimination that motivated the employer to act as it did. Id.
Finally, the agency argues that the AJ's award of $15,000.00 in
non-pecuniary damages was excessive.<4> At the damages hearing,
complainant testified that she had been looking forward to returning to
work, but that A-1 told her to get off the clock and go home. Complainant
stated that not being able to work caused financial worries because she
was afraid that she was going to lose her home. Although she was an
independent person, she had to rely on family and friends to help her.
She became depressed and had to be placed on anti-depressants. She had
trouble sleeping and her Graves disease was aggravated by these events.
The AJ found that complainant was entitled to $15,000.00, because of the
severity and nature of the behavior towards her by her managers and the
effect that it had on her work and personal life. After a review of the
record, we do not agree with the agency that an award of $15,000.00 is
excessive. A $15,000.00 award is not �monstrously excessive" standing
alone, is not the product of passion or prejudice, and is consistent
with the amount awarded in similar cases.<5>
Accordingly, the agency's final order is REVERSED, as noted below. The
agency will take corrective action in accordance with this decision and
the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action, within 90
calendar days:
1. The agency shall issue a check to complainant in the amount of
$15,000.00 for non-pecuniary damages.
2. The agency shall issue a check to complainant in the amount of
$12,168.09 for attorney fees and costs.
3. The agency shall issue a check to complainant in the amount of
$4,688.12 for back pay. The agency shall also determine and provide all
other benefits due complainant pursuant to 29 C.F.R. � 1614.501. The
complainant shall cooperate in the agency's efforts to compute said
benefits, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of
said benefits, the complainant may file a petition for enforcement
or clarification. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
4. The agency shall provide EEO training to A-1 and A-2 that emphasizes
the elimination of discrimination in the workplace. The Commission does
not consider training to be a disciplinary action.
5. The agency shall consider taking disciplinary action against A-1
and A-2. The agency shall report its decision. 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.
6. 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 indicating
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Smith, Arkansas Post Office
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___09-22-03_______________
Date
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at this 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 Fort Smith, Arkansas Post Office confirms its commitment
to comply with these statutory provisions.
The Fort Smith, Arkansas Post Office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Fort Smith, Arkansas Post Office was found to have discriminated
against an employee because of her race when it denied her light duty.
The Fort Smith, Arkansas Post Office has been ordered to, among
other things, provide the employee back pay, compensatory damages
and attorney's fees. Management was also directed to provide EEO
training to the officials who were involved in the decision to deny
light duty work. The Fort Smith, Arkansas Post Office will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The Fort Smith, Arkansas Post Office 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 16141 According to B-1, �[Complainant] has significant
restrictions from her medical condition and has yet to reach maximum
improvement. Further it is not known when she will reach maximum
improvement.� B-1 also indicated that complainant's medications might
cause fatigue, drowsiness, and an increased risk of bleeding if she cut
herself. Among the temporary restrictions that were noted, complainant
was prohibited from operating a motor vehicle, working 8 hours per day,
lifting more then 25 pounds, walking for more than an hour intermittently
and carrying more than 2 hours.
2 The AJ did not find that complainant was seeking a reasonable
accommodation, but was merely seeking a light duty assignment for an
off-duty injury.
3In light of our finding above that complainant was discriminated against
on the basis of her race, we do not find it necessary to address the
matter of whether she was also discriminated against because of a
perceived disability.
4The agency did not object to the other remedies ordered by the AJ.
5Olsen v. Department of Defense, EEOC Appeal No. 01956675 (July 29,
1998) ($16,000 for depression, anxiety, sleep deprivation, worry,
marriage and family problems); Hull v Department of Veteran Affairs,
EEOC Appeal No. 01951441 (Sept. 18, 1998) ($12,000 in non-pecuniary
damages based on complainant's testimony of emotional distress due to
agency discrimination); Jones v. Department of Defense, EEOC Appeal
No. 01973551 (April 14, 2000)($9,000 in non-pecuniary damages based on
complainant's statements regarding interference with family and marital
relations, digestive problems, headaches, anxiety, sleeplessness, and
exhaustion resulting from the agency's discrimination).