0120093435
08-03-2012
Gary E. Bergman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Gary E. Bergman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120093435
Hearing No. 480-2007-00008X
Agency Nos. 4F-913-0086-05,
4F-913-0142-06,
4F-913-0073-07
DECISION
On July 27, 2009, Complainant filed an appeal requesting enforcement of the Agency's May 22, 2009, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a) and 29 C.F.R. � 1614.504. For the following reasons, the Commission REMANDS this matter to the Agency.
ISSUES PRESENTED
The issues presented herein are whether the EEOC Administrative Judge (AJ) properly delineated the scope of the remedies awarded to Complainant, and whether the Agency has complied with the orders adopted from the AJ's decision finding discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Woodland Hills, California, Post Office. On October 27, 2005, and on two subsequent dates, Complainant filed EEO complaints alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability, age (53), and in reprisal for prior protected EEO activity arising under Title VII, the ADEA, and the Rehabilitation Act when:
1. from May 1, 2005 through September 2005, he was discriminated against and the Agency failed to reasonably accommodate him when it failed to provide him with a four-case shelf and fewer delivery stops for route 216;
2. since late 2005 through August or September 2006, he was subjected to discrimination and the Agency failed to reasonably accommodate him when it failed to return him to an earlier start time for route 427;
3. from September 2, 2006 through September 5, 2006, he was discriminated against and the Agency failed to reasonably accommodate him when it refused to allow him to set-up mail in tubs inside the postal facility for route 427;
4. he was subjected to a hostile work environment in July and August 2006, and in June 2007; and
5. since March 2007, he is no longer allowed to perform overtime on his own route.
At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings, and all three complaints were consolidated for hearing. On November 4, 2008, the AJ issued an Order granting summary judgment in part on three of the issues in Complainant's complaints. The AJ held a hearing on the remaining issues (claims 1, 2, and 3 listed above) on January 21 and February 3, 2009, and issued a decision on April 9, 2009.
In his decision, the AJ found that Complainant had been discriminated against based on his disability when the Agency did not reasonably accommodate him, as claimed in issues 1 and 3. The AJ concluded that Complainant's lumbar disc degenerative disease substantially limited him in the major life activity of lifting and caring for himself at the relevant periods of time, and that Complainant was a qualified individual with a disability. The AJ found that the Agency failed to engage in the interactive process beginning in May 2005 when Complainant asked for a 4-shelf case and fewer delivery stops, and failed to provide a reasonable accommodation. He also found that the Agency had failed to provide Complainant with a reasonable accommodation from September 2 through September 5, 2006, by allowing him to use a table on which to sort mail into tubs, and that it did not show that the use of a table was an undue hardship. The AJ also concluded that Complainant had been discriminated against based on his sex when he was not allowed to sort mail into tubs inside the facility utilizing a table for the tubs.
The AJ further found that Complainant had not been discriminated against based on race or sex discrimination when he was not allowed a 4-shelf case and fewer deliveries in 2005; based on his age, race, sex, disability, and in retaliation for prior protected EEO activity when he was not returned to his earlier start time; and based on reprisal when he was not permitted to use tubs on a table inside the facility to sort mail. The AJ found that Complainant was not denied a reasonable accommodation in the form of an earlier start time because he had not established that it was needed in order to address his physical limitations.
The AJ issued summary judgment in favor of the Agency on Complainant's claims that he was discriminated against on the bases of his race, age, disability and in reprisal for prior protected EEO activity with respect to his alleged hostile work environment claims and to the claim regarding overtime in March 2007.
The AJ ordered the following remedies:
1. The Agency shall engage in the interactive process with Complainant to determine what accommodations may be necessary for him to perform the essential functions of his position.
2. The Agency shall compensate Complainant for all lost pay and applicable benefits which he was denied, including lost pay, lost leave, and TSP contributions, for the three days Complainant was removed from sorting activity and given fewer than eight hours of work. Such compensation shall be paid by the Agency within 60 days of this Decision being final.
3. The Agency shall meet with Complainant and determine whether he suffered any loss of pay or other benefits as the result of the Agency's refusal to determine whether it could provide him a four case shelf or could carve a few delivery stops from his route. If complainant shows actual loss, the Agency shall reimburse Complainant for such loss immediately, but in no event later than 60 days after the date this Decision becomes final.
4. Prejudgment interest shall also be paid on lost back-pay and benefits, at the annual percentage rate or rates established by the US Secretary of the Treasury under 26 U.S.C. � 6621(a), and 5 C.F.R. � 550.806(d) and (e). Interest shall be paid from the dates Complainant was eligible or entitled to such additional compensation to the date that the monetary amount is paid by the Agency. (See EEO-MD-110, Section 9-19).
5. Within 60 days from the date this Decision becomes final, the Agency shall provide Complainant with a detailed statement of the Agency's calculations regarding Complainant's additional back-pay, other applicable employment benefits, and interest.
6. The Agency shall allow Complainant to use tubs from inside the facility to sort mail, in order to accommodate his twisting and bending restrictions, pursuant to his current medical reports.
7. The Agency shall pay $40,500 in non-pecuniary compensatory damages.
8. The Agency shall pay $232.73 in costs.
9. The Agency shall provide training to Postmaster Y to clearly explain the requirement for the Agency to accommodate the known limitations of "individuals with a disability," absent undue hardship.
10. The Agency shall provide a written summary for Woodland Hills employees, managers, and supervisors of the Rehabilitation Act and its requirement that federal agencies, such as the U.S. Postal Service, are required to reasonably accommodate the known limitations of "individuals with a disability", in accordance with EEOC Guidelines. The written notification shall also state that if there is a concern if work can be performed within the employee's medical restrictions, the supervisor or manager will immediately contact a designated advisor in order to promptly resolve the matter.
11. The Agency shall inform Postmaster Y and Woodland Hills managers and supervisors in writing that any failure to promptly address an employee's request for accommodation can result in disciplinary action, including but not limited to suspension, demotion, or termination.
12. The Agency shall post a notice that a finding of discrimination occurred with respect to the facility for ninety (90) days.
The Agency subsequently issued a final action on May 22, 2009, adopting the AJ's decision, including the findings that Complainant proved that the Agency subjected him to discrimination as alleged and including the remedies as ordered by the AJ. Complainant subsequently filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant raises numerous arguments on appeal, which can be divided into two general areas. First, he argues that the remedies awarded by the AJ were not adequate to compensate him for the amount of harm he claims to have suffered due to the actions of the Agency. In support of this, he claims that he should have been compensated for injuries he suffered in 2000, 2002, 2004, and 2005; that he should receive $47,900 based on having to move, the time spent on his EEO complaints, lost benefits, and lost overtime; and that he should receive back interest from 2004 through the present. Second, Complainant claims that the Agency did not fully comply with the orders of the AJ. He argues on appeal that the Agency should have awarded him a larger amount of lost leave and compensation for the period of time when he was not accommodated; that the Agency did not distribute the reasonable accommodation policy in writing to the Woodland Hills personnel, as required by the AJ; that he was not being reasonably accommodated on an on-going basis; and that he deserved a larger amount of money for his TSP losses and financial losses incurred as a result of his having to move. He has submitted numerous filings in support of his appeal.
The Agency submitted documents which it asserts shows that it has complied with the AJ's order and that it has fully satisfied it obligations.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
Remedies Awarded
The AJ crafted a series of remedies which were designed to place Complainant in the position he would have been in had the discrimination not occurred, as is required under the anti-discrimination statutes and case precedents. Those remedies were fully outlined in the Background section, above. We find that the AJ properly framed the remedies, in accordance with the issues accepted for investigation in Complainant's complaints, and in accordance with the findings of discrimination made following the presentation of the evidence and testimony at the hearing and the arguments presented to the AJ. Although Complainant maintains in his many submissions on appeal that the scope of his damages is far greater than that awarded, we find that the AJ's award should not be disturbed.
Agency's Implementation of Remedies
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that a final agency action that has not been the subject of an appeal or a civil action shall be binding on the agency. The regulation provides further that if a complainant believes that the agency has not complied with the terms of the final decision, that the complainant shall notify the agency EEO Director, in writing, within thirty days of the date on which the complainant knew or should have known of the noncompliance. Id. The agency shall resolve the matter and provide a written response to complainant. 29 C.F.R. � 1614.504(b). If the complainant does not receive a response or is not satisfied with said response, the complainant may appeal to the Commission for a determination as to whether the agency is in compliance. Id.
The Agency fully adopted the Decision and Order of the AJ in its May 22, 2009 final action. Complainant first notified the Agency and the Commission on June 15, 2009, that he believed that the amount paid by the Agency was not as much as he thought was ordered, although it was unclear if he was actually claiming that the Agency was not in compliance at that time. On July 26, 2009, Complainant filed an appeal with the Commission in which he raised many of his claims regarding the AJ's decision and the Agency's compliance. On October 6, 2009, the Agency provided Complainant a letter regarding its compliance with the AJ's order. Once it was on notice of Complainant's claims of non-compliance, the Agency responded to the Commission with evidence to show its compliance with the AJ's decision.
As we have found that Complainant's claims for augmented damages are not supported by the findings of the AJ, we will address just those claims which pertain to the remedies awarded by the AJ. The Agency on appeal submitted evidence that it had taken, or was in the process of taking, the following actions.
The Postmaster of the Woodland Hills Post Office (not the responsible management official named in the AJ's decision) represented that the Agency had engaged in the interactive process with Complainant and had provided him with a "FFV type vehicle," and a four-shelf case, and that no other accommodations were "requested or necessary." Back pay forms were submitted to the Postal Accounting Services Unit for processing for September 2, 2006 through September 5, 2006 and from May 1, 2005 through September 30, 2005.
Complainant was given forms to complete in order to make a claim for the "any loss of pay or other benefits as the result of the Agency's refusal to determine whether it could provide him a four case shelf or could carve a few delivery stops from his route," but no evidence was submitted which shows what was actually paid. Complainant's many claims of larger amounts owed seem to pertain to this point in the AJ's Order. The Agency stated that interest would be paid, and a detailed statement of the calculations would be provided when the back pay was processed. A copy of a check dated October 29, 2009, in the amount of $1,590.20 was provided with the notation that it represented the amount of "interest on back pay award." Payment of $3,311.85 was also processed as payment of the back pay award on October 14, 2009.
The Agency further represented that Complainant was not assigned at that time to a route which required the use of tubs, and therefore, it was in compliance with point 6 of the AJ's Order.
The Agency provided a copy of the check sent to Complainant in the amount of $40,732.73, which was for the amount of non-pecuniary compensatory damages and costs awarded by the AJ. It also provided a copy of the Notice to Employees which had been required by the AJ, and had been posted for the requisite 90 days at the Woodland Hills Post Office.
The Agency stated that "[t]he required training has been finalized." The AJ specified the type of training that the Agency would be required to provide in points 9, 10, and 11 of his Order. The Agency in its submission did not provide proof of the training attended by Postmaster Y, although the current Woodland Hills Postmaster stated that it had been provided. The Agency did not provide a copy of the written summary and notice to the Woodland Hills employees of the Rehabilitation Act, its requirement that an Agency shall provide reasonable accommodations, or how to address concerns about work outside of medical restrictions. Nor did the Agency provide a copy of the notice given to Postmaster Y and Woodland Hills managers and supervisors regarding the consequences of failure to respond to reasonable accommodation requests.
The Commission finds that the record does not contain information sufficient to determine whether the Agency has fully complied with all aspects of the AJ's Order, although it clearly has made substantial efforts to carry out the Order. Specifically, the record is lacking proof as to the Agency's compliance with the provision of lost leave and TSP contributions (point 2), "any loss of pay or other benefits" (point 3), a statement of the calculations on the "other applicable employment benefits" (point 4), and the training provisions (points 9, 10, and 11).
We note that Complainant's claims regarding an on-going alleged failure of the Agency to provide a reasonable accommodation are the subject of a subsequent EEO complaint, and will be addressed in Bergman v. U.S. Postal Service, EEOC Appeal No. 0120113504 (pending).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, and given the lack of evidence regarding compliance with all elements of the AJ's order in this case, we REMAND this matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
To the extent the Agency has not already complied with the AJ's Order, the Agency shall take the following actions within sixty (60) days of the date this decision becomes final:
1. The Agency shall engage in the interactive process with Complainant to determine what accommodations may be necessary for him to perform the essential functions of his position.
2. The Agency shall compensate Complainant for all lost pay and applicable benefits which he was denied, including lost pay, lost leave, and TSP contributions, for the three days Complainant was removed from sorting activity and given fewer than eight hours of work. Such compensation shall be paid by the Agency within 60 days of this Decision being final.
3. The Agency shall meet with Complainant and determine whether he suffered any loss of pay or other benefits as the result of the Agency's refusal to determine whether it could provide him a four-shelf case or could carve a few delivery stops from his route. If complainant shows actual loss, the Agency shall reimburse Complainant for such loss immediately, but in no event later than 60 days after the date this Decision becomes final.
4. Prejudgment interest shall also be paid on lost back-pay and benefits, at the annual percentage rate or rates established by the US Secretary of the Treasury under 26 U.S.C. � 6621(a), and 5 C.F.R. � 550.806(d) and (e). Interest shall be paid from the dates Complainant was eligible or entitled to such additional compensation to the date that the monetary amount is paid by the Agency. (See EEO-MD-110, Section 9-19).
5. Within 60 days from the date this Decision becomes final, the Agency shall provide Complainant with a detailed statement of the Agency's calculations regarding Complainant's additional back-pay, other applicable employment benefits, and interest.
6. The Agency shall allow Complainant to use tubs from inside the facility to sort mail, in order to accommodate his twisting and bending restrictions, pursuant to his current medical reports.
7. The Agency shall pay $40,500 in non-pecuniary compensatory damages.
8. The Agency shall pay $232.73 in costs.
9. The Agency shall provide training to Postmaster Y to clearly explain the requirement for the Agency to accommodate the known limitations of "individuals with a disability", absent undue hardship.
10. The Agency shall provide a written summary for Woodland Hills employees, managers, and supervisors of the Rehabilitation Act and its requirement that federal agencies, such as the U.S. Postal Service, are required to reasonably accommodate the known limitations of "individuals with a disability", in accordance with EEOC Guidelines. The written notification shall also state that if there is a concern if work can be performed within the employee's medical restrictions, the supervisor or manager will immediately contact a designated advisor in order to promptly resolve the matter.
11. The Agency shall inform Postmaster Y and Woodland Hills managers and supervisors in writing that any failure to promptly address an employee's request for accommodation can result in disciplinary action, including but not limited to suspension, demotion, or termination.
12. The Agency shall post a notice that a finding of discrimination occurred with respect to the facility for ninety (90) days, as set forth in the below entitled paragraph, "Posting Order."
The Agency is further directed to submit a report of compliance, as provided in the "Implementation of the Commission's Decision." The report shall include all supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Woodland Hills, California, 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 3, 2012
Date
2
0120093435
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093435