01a00241
07-06-2000
Devuono Hunter, Sr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Headquarters), Agency.
Devuono Hunter, Sr. v. United States Postal Service
01A00241
July 6, 2000
Devuono Hunter, Sr., )
Complainant, )
) Appeal No. 01A00241
v. ) Agency No. HI-0074-96
William J. Henderson, ) Hearing No. 170-98-8068X
Postmaster General, )
United States Postal Service )
(Headquarters), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (African-American) in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated
against when he was given an unsatisfactory performance appraisal during
his probationary period and on November 20, 1995, he was informed that
he would be terminated from his employment as a Postal Police Officer.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission REVERSES and REMANDS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a probationary Postal Police Officer at the agency's
Philadelphia Division facility. Believing he was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on December 27, 1995. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report(s) and requested a hearing before an EEOC administrative judge
(AJ). Following a hearing, where ten witnesses and complainant testified,
the AJ issued a decision finding discrimination.
The AJ concluded that the nature of the management's official's conduct
and testimony were direct evidence of discrimination. The AJ found that
the racially charged statements and hand gestures, clearly delineated
in the AJ's decision, made by the Officer-in-Charge (OIC)(Caucasian) to
a fellow Postal Police Officer (PPO)(Caucasian) which impacted directly
on the handling of the investigation against the complainant constituted
direct evidence of discrimination; moreover, that the OIC's statements
were a manifestation of his discriminatory animus and that it tainted the
agency's ability to objectively assess any of the complainant's conduct.
In addition, because the OIC was the de facto prosecutor and decision
maker regarding the allegations of misconduct against the complainant,
the OIC had a hand in every phase of the disciplinary process; therefore,
none of the agency's allegations could withstand scrutiny. The AJ found
that each allegation by the agency was tainted by discriminatory animus
and fraught with other inconsistencies. Ultimately, the AJ found that the
agency would not have acted upon any of the allegations of misconduct made
against the complainant in the absence of discrimination. Finding that
the agency had intentionally discriminated against complainant on the
basis of race, the AJ recommended relief included that complainant be
reinstated to his previous position of Postal Police Officer; back pay;
expungement of negative references from complainant's official personnel
folder and successful completion of complainant's probationary period;
compensatory damages in the amount of $1000; and reasonable attorney's
fees and costs.
The agency's final decision rejected the AJ's decision and concluded that
no discrimination had occurred. In addition to the agency's contrary
findings to the AJ's decision the agency raised an issue with regard
to the first AJ (AJ-1) assigned to complainant's case. It appears
that the first AJ assigned to the case indicated her intention to grant
summary judgment in a telephone conference with the parties' counsel
prior to the case being transferred to another AJ (AJ-2).<2> However,
AJ-1 never issued a final decision, or reduced a decision to a form
which complainant could have appealed. Furthermore, there is nothing
in the governing regulations which prohibits any AJ from reconsidering a
ruling prior to it being finalized. Therefore, we find that the agency's
argument in this regard lacks merit.
On appeal, complainant contends that the AJ correctly summarized the
facts and reached the appropriate conclusions of law.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ's decision.
Compensatory Damages
The AJ recommended a compensatory damages award in the amount of
$1,000. The AJ noted that although complainant presented minimal evidence
of compensatory damages, this award was nevertheless based on the Report
of Investigation and complainant's testimony that the discrimination he
suffered caused humiliation, embarrassment and stress when he had to go
back to his craft position. Complainant did not indicate that he sought
medical treatment as a result of the discrimination nor did he provide
evidence of any other out-of-pocket expenses, past or future.
The Commission notes that damage awards of emotional harm are difficult
to determine and that there are no definite rules governing the amount
to be awarded in given cases. In this regard, a proper award must meet
two goals: that it not be "monstrously excessive" standing alone and
that it be consistent with awards made in similar cases. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). We further note
that jury and court awards for nonpecuniary damages based on humiliation
and embarrassment have varied considerably. See, e.g., Kuntz v. City
of New Haven, 3 A.D. Cas. (BNA) 1590, 1592 (D.C. Conn.)($500.00 award
for emotional distress based on plaintiff's testimony that he was
"disappointed", "cranky" with family and friends, "embarrassed" at not
having been promoted, and had many sleepless nights), aff'd without
opinion, 29 F.3d 622 (2d Cir.), cert. denied, 115 S.Ct. 667 (1994);
Sassaman v. Heart CityToyota, 66 Fair Empl. Prac. Cas. (BNA) 1230,
1236 (N.D. Ind. 1994) (jury award of $2,000.00 in nonpecuniary damages
appropriate in sexual harassment case based on plaintiff's testimony
concerning humiliating, degrading, and embarrassing conduct of four male
supervisory employees and testimony of employer's medical expert that
plaintiff likely would suffer "daily pain" having to work in hostile
environment).
Several Commission decisions have awarded compensatory damages in cases
similar to complainant's. See, e.g., Benson v. Department of Agriculture,
EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 sufficient to compensate
for embarrassment and humiliation); Lawrence v. United States Postal
Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000 for emotional
harm caused by short period of sexual harassment where agency failed to
take appropriate action to promptly stop the harassment). Taking into
account the testimony provided by complainant, the Commission finds that
the AJ considered the proper factors and goals in recommending a
compensatory damages award of $1,000. The Commission notes that this amount
is not "monstrously excessive" standing alone and is consistent with
amounts awarded in similar cases.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES
the agency's final decision and remands the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall reinstate complainant to his previous position as a
Postal Police Officer in a non-probationary status. Complainant shall
also be awarded back pay, seniority and other employee benefits from
the date of the effective removal.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
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."
The agency is directed to expunge all negative references from
complainant's official personnel folder and note complainant's successful
completion of his probationary period.
The agency is directed to award complainant compensatory damages in the
amount of $1000.
The agency is directed to conduct training for the Official-in-Charge
who was found to have discriminated against complainant and provide a
minimum of sixteen (16) hours of EEO training with respect to Title VII.
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 calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Philadelphia, Pennsylvania facility
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal
with the Commission. 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.
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:
July 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)
INITIAL
DATE
TO: CARLTON M. HADDEN
TO: HILDA RODRIGUEZ
APPEAL NUMBER 01A00241
AGENCY NUMBER HI-0074-96
REQUEST NUMBER
HEARING NUMBER 170-98-8068X
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY): Roseanne Medina
5/9/00
(SUPERVISOR): Mary Jean Moore
(DIVISION DIRECTOR): Marie Fitzgerald
COMPLAINANT(S): Devuono Hunter, Sr.
AGENCY: United States Postal Service
DECISION: Reverse and Remand
STATUTE(S) ALLEGED: Title
VIIBASIS(ES) ALLEGED:
RBISSUE(S) ALLEGED: D2
WHERE DISCRIMINATION IS FOUND (ONLY): (A)
BASIS(ES) FOR FINDING: RB(B)
ISSUES IN FINDING:
TYPIST/DATE/DISKETTE RM4/5/9/00
SPELL CHECK yes
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERIT DECISION
MERIT DECISION (CONTINUED)
? 4A - MERITS DECISION
? 4B - OFO FOUND DISCRIMINATION
LIST BASIS CODES:___RB______________________________
LIST ISSUE CODES:__________________________________
? 4C - OFO FOUND NO DISCRIMINATION
? 4R - OFO FOUND SETTLEMENT BREACH
? 4S - OFO FOUND NO SETTLEMENT BREACH
? 4E - AGENCY FOUND DISCR./BREACH
? 4F - AGENCY FOUND NO DISCR./BREACH
? 4H - OFO AFFIRMED AGENCY
? 4I - OFO REVERSED AGENCY
? 4J - OFO MODIFIED AGENCY:
(NOTE): IF AFFIRMED IN PART AND REVERSED IN
PART, THEN (3L) CODE REQUIRED IF AT LEAST
ONE ISSUE IS REMANDED.
? 3L - OFO REMANDED PART OF AGENCY'S MERITS
DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO
REQUIRES (4I) CODE.
? 3P - ADVERSE INFERENCE
? 4K - AJ FOUND DISCRIMINATION
? 4L - AJ FOUND NO DISCRIMINATION
? 4M - AJ MADE NO FINDING
? 4N - OFO AFFIRMED AJ
? 4O - OFO REVERSED AJ
? 4P - OFO MODIFIED AJ
? 4T - AJ ISSUED SUMMARY JUDGMENT DECISION
? 4U - OFO AFFIRMED AJ SUMMARY JUDGMENT
? 4V - OFO REVERSED AJ SUMMARY JUDGMENT
? 3H - OFO DENIED ATTORNEYS FEES
? 3I - OFO APPROVED ATTORNEYS FEES
? 3J - OFO MODIFIED ATTORNEYS FEES
? 4Q - COMPLIANCE REQUIRED
REVISED - (2/3/00)
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 ("EEOC") 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service, Philadelphia, Pennsylvania
(hereinafter, the facility), supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have violated Title VII when it
intentionally discriminated against an employee based on his race when
it gave an employee an unsatisfactory performance appraisal during his
probationary period and informed him that he would be terminated from
his employment as a Postal Police Office. The facility was ordered
to reinstate the employee to his previous position of Postal Police
Officer in a non-probationary status; provide back pay; expunge
negative references from the employee's official personnel folder;
pay the employee compensatory damages; and reasonable attorney's fees
and costs.
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. � 1614
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record contains no explanation as to why complainant's case was
transferred from AJ-1 to AJ-2.