07A40028
09-17-2004
Edwin Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edwin Williams v. United States Postal Service
07A40028
September 17, 2004
.
Edwin Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A40028
Agency No. 1C-451-0029-00
Hearing No. 220-A1-5041X
DECISION
Following its November 12, 2003 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 and harassed the complainant on the bases
of his race (African-American), color (Black) and retaliation for prior
EEO activity regarding the terms and conditions of his employment and
regarding the discipline which resulted in the complainant's removal
from the agency. The agency also requests that the Commission affirm
its rejection of the AJ's order to reinstate the complainant and award
remedial damages. For the following reasons, the Commission REVERSES
the agency's final order.
The complainant was a Tractor Trailer Operator employed at the agency's
Cincinnati Bulk Mail Center at the agency's Cincinnati, Ohio facility.
The complainant filed a formal EEO complaint with the agency on
February 9, 2000, alleging that he was subjected to a pattern of racial
discrimination and retaliation which resulted in his removal on June
14, 2000.
At the conclusion of the investigation, the complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that the complainant established a
prima facie case of discrimination on the bases of his race, color and
retaliation with regard to several incidents and ongoing harassment.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for some of its action when the agency stated that the complainant
was not viewed as performing his duties and had threatened a supervisor.
In ruling that the stated reasons were a pretext for discrimination,
however, the AJ stated:
The testimony of complainant, [and complainant's witnesses] refutes that
of the [responsible management officials]. Complainant's recounting of the
numerous humiliations, disparate treatment and harassment that he suffered
at the hands of [the two management officials] is as convincing as the
treatment was egregious. The complainant's testimony was forthright,
emotional, but unflinching. He appeared genuine and unequivocal as he
outlined the multiple occasions of disparate treatment that he endured.
Based on the available anecdotal and documentary evidence, the AJ
concluded that the complainant established that more likely than not,
the reasons provided by the agency were a pretext for discrimination. The
AJ awarded the relief noted below.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the credibility determinations are factually erroneous
and that retaliation was not shown.
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.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.
Further, we find that the record supports the AJ award of non-pecuniary
damages in the amount of $4,000. We note that the Commission has
awarded compensatory damages in similar cases. See, e.g., Schneider
v. United States Postal Service, EEOC Appeal No. 07A30008 (April 17,
2003) ($8,000.00 in non-pecuniary damages); Garcia v. Department of
the Treasury, EEOC Appeal No. 07A10040 (January 13, 2003)($3,000 in
non-pecuniary damages in reprisal action where complainant had signs of
depression and loss of self-esteem).
In addition, we find that the record supports the award of attorney's
fees. For the reasons set forth in the AJ order, we sustain the order
of relief as it pertains to the award of attorneys fees and costs in
the amount of $12,550.
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. The agency is directed to take
corrective action in accordance with this decision and the Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
No later than thirty (30) days after the date this decision becomes
final, the agency shall cancel and expunge from the agency's records
and complainant's official records any adverse materials relating
to the agency actions that were found to be the result of unlawful
discrimination or retaliation, specifically the June 14, 2000 Notice
of Removal.
Reinstate the complainant to his position as a PTF Tractor Trailer
Operator, PS-06 at the agency's Cincinnati Bulk Mail Center or a
substantially equivalent position not under the supervision of the
discriminating officials.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall pay the complainant back wages,
plus interest, from the date of his removal until he is reinstated in
compliance with this order. The agency shall determine the appropriate
amount of back pay, with interest, and other benefits due complainant,
pursuant to 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 or interest, 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."
No later than sixty (60) calendar days after the date this decision
becomes final, and as ordered by the AJ, the agency shall pay the
complainant an additional amount of back pay and interest calculated and
based on the accumulated weekly average of overtime that the remaining
PTF Tractor Trailer Operators worked during the period from the date
of the complainant's removal until his reinstatement.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall provide EEO training to the two managers
(identified in the remedial order if the two managers are still employed
as managers with the agency) on their responsibilities for EEO compliance
under Title VII of the Civil Rights Act.
Within sixty (60) days of the date on which this decision becomes final,
the agency shall pay complainant the sum of $4,000 for non-pecuniary
compensatory damages.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall tender to the complainant's attorney's fees in the
amount of $12,550 as reasonable attorney's fees and costs for services
rendered to September 30, 2000. For any subsequent attorney's fees and
costs, see the attorney's fee provision below.
The agency shall consider taking disciplinary action against the agency
personnel responsible for the discriminatory action at issue in this
case. 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.
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.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Cincinnati, Ohio Bulk Mail Center
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.
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
September 17, 2004
__________________
Date
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 this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of that 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 Post Office Bulk Mail Center in Cincinnati, Ohio
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The United States Post Office Bulk Mail Center in Cincinnati, Ohio has
been found to have discriminated against the individual affected by the
Commission's finding when he was subjected to harassment and different
terms and conditions. The United States Post Office Bulk Mail Center in
Cincinnati, Ohio shall provide the affected individual with reinstatement,
pay proven compensatory damages, train its managers and pay reasonable
attorney's fees and costs. The United States Post Office Bulk Mail
Center in Cincinnati, Ohio 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
and will not retaliate against employees who file EEO complaints.
The United States Post Office Bulk Mail Center in Cincinnati, Ohio 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