01994631
02-13-2002
Harrison B. Beler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Harrison B. Beler v. United States Postal Service
01994631
February 13, 2002
.
Harrison B. Beler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01994631
Agency No. 1-J-626-1007-97
Hearing No. 210-98-6474X
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant argues on appeal that the Administrative
Judge (AJ) properly concluded in her decision that the agency had
unlawfully discriminated against him on the basis of his Race (Black)
when, on November 19, 1996, it issued him a fourteen-day suspension,
and that the agency improperly refused to implement this finding of
discrimination in its FAD.<1> Complainant also appeals the AJ's denial
of compensatory damages as a remedy for the proven discrimination.
For the following reasons, we REVERSE the FAD in part and AFFIRM in part.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to his complaint, complainant was employed as a
Mailhandler at the agency's Springfield, Illinois facility. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a formal complaint on February 12, 1997. At the
conclusion of the EEO investigation, complainant was provided a copy of
the investigative report and requested a hearing before an AJ.
On February 10, 1999, after holding a hearing in the matter, the AJ
issued a bench decision finding the agency had discriminated against
complainant when on November 19, 1996 it suspended him for fourteen days.
The AJ found that complainant had established a prima facie case of racial
discrimination by the agency regarding the suspension, as complainant and
a White coworker had each received a third disciplinary action for prior
unscheduled absences, but, when each had multiple, subsequent episodes
of unscheduled leave, only complainant received a fourth disciplinary
action�the November 19, 1996 suspension.
After noting that once complainant has established his prima facie case,
the burden of production shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions, the AJ found that the agency
had failed to meet this burden. The AJ found that the agency officials
responsible for the suspension, the Manager, Distribution Operations
(M1) and the Supervisor, Distribution Operations (S1), had provided
that the reason for the suspension was that complainant had continued
to have unscheduled absences even after receiving his third discipline
for such behavior. However, the AJ also found that the agency failed
to provide any explanation as to why it did not further discipline the
White employee who similarly continued to have unscheduled absences
subsequent to his third discipline. Therefore, the AJ concluded, as the
agency did not state with specificity what the difference was between
complainant's employment record and the other employee which would cause
only complainant to receive further discipline, the agency had failed
to meet its burden of production, and complainant's prima facie case
stood unrebutted.
The AJ further concluded that complainant had established that the
reasons provided by the agency for its action were a pretext for racial
discrimination. The AJ found that, in light of the aforementioned
instances of undisciplined, unscheduled absences by the White employee
similarly situated to complainant, the agency's failure to explain why
different treatment was accorded White and Black employees, and other
evidence presented showing complainant was less-favorably treated by
M1 than non-Black Mailhandlers, it was more likely than not that the
difference in discipline given to complainant was based upon his race.
In its FAD, the agency rejected the portion of the AJ's decision
addressing the suspension claim, asserting that the decision was not in
accordance with established law. In its FAD, the agency stated that,
even assuming complainant had established a prima facie case of racial
discrimination, the evidence presented did not support a finding that the
agency's suspension of complainant was motivated by his race. The agency
stated that the AJ had relied heavily upon the alleged racial animus of
M1, but that such reliance was flawed because M1 had no involvement in the
suspension beyond concurring with the decision to discipline complainant,
and the testimony of two witnesses to M1's discriminatory treatment of
complainant was not credible. The agency also noted that the Plant
Manager had presented unrebutted testimony contradicting that of the
aforementioned witnesses to M1's treatment of complainant. The agency
concluded that complainant had failed to show that a discriminatory motive
more likely than not motivated the agency's imposition of the suspension.
On appeal, complainant argues for reinstatement of the AJ's decision,
claiming that the unrebutted evidence presented was sufficient to
support a finding of discrimination. The agency raises no new arguments
on appeal.<2>
ANALYSIS AND FINDINGS
Complainant's Discrimination Claim
As an initial matter, we note that neither party has raised as an
issue on appeal the establishment of complainant's prima facie case.
Accordingly, and in light of the evidentiary record showing that
complainant had presented sufficient evidence to establish a prima
facie case of racial discrimination we do not disturb on appeal the AJ's
finding that complainant met this initial burden.
Under the analytical framework applied to claims such as this, where
there has been no presentation of direct evidence of discrimination, upon
complainant's establishment of his prima facie case, the burden shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its alleged discriminatory action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 142 (2000). In her decision, the AJ concluded that the
agency failed to meet its burden of production. The AJ found that the
agency did articulate a reason for its suspension of complainant�his
continued unscheduled absences subsequent to his receiving a third
discipline for such conduct�but, as the agency failed to provide a reason
why complainant's non-Black coworkers were not similarly disciplined, it
failed to produce a legitimate, nondiscriminatory reason for its action.
See Reeves, 530 U.S. at 142-43 (explaining that employer, when attempting
to satisfy its burden of production by articulating a legitimate,
nondiscriminatory reason for its action, must produce �sufficient evidence
to support a nondiscriminatory explanation for its decision�); Glomski
v. United States Postal Service, EEOC Appeal No. 01955157 (July 17,
1997) (holding that agency failed to meet its burden of production when
it failed to provide an explanation as to why complainant was treated
differently than person outside his protected class). As a result, the AJ
was correct to conclude, as does the Commission, that the agency failed
to meet its burden of producing sufficient evidence to show that its
reason for suspending complainant was legitimate and nondiscriminatory.
The agency also asserted in its FAD that the AJ's credibility
determinations regarding the testimony presented describing the racial
animus of M1 were unsupported by the evidence. Credibility determinations
of the Administrative Judge are generally entitled to deference.
Universal Camera Corporation v. National Labor Relations Board, 340
U.S. 474, 496 (1951). This deference is not automatic, and if there is
sufficient evidence which suggests that the credibility determination
is erroneous, deference will not be given. Embree v. Veterans
Administration, EEOC Request No. 05901054 (November 15, 1990). In the
instant case, the AJ found credible the testimony of two of complainant's
coworkers, who provided that M1 behaved differently toward complainant
than he did toward the non-Black employees. They testified that M1 would
refer to complainant by his last name, but the other Mailhandlers by their
first names; would order complainant but not his non-Black coworkers to
perform less favorable duties which should properly have been assigned
to personnel less senior to complainant; and would regularly speak to
complainant in an abrupt, short, and sarcastic manner, but not normally
speak to complainant's non-Black coworkers in such a manner.
However, the agency concluded that, even assuming complainant had
established his prima facie case, there was no evidence which would
indicate that M1's behavior was motivated by complainant's race.
It contended in its FAD that the aforementioned testimony was not
credible as the witnesses were vague and offered no specific examples
of when Black employees were treated differently than White employees.
The agency also pointed to the testimony of the Plant Manager, who
provided that he had never seen M1 belittle or yell at anyone on the
floor, as supporting its conclusion.
We disagree that the testimony presented was not worthy of credence,
or that it was insufficient to support a finding of M1's animus toward
complainant based upon race. The AJ found the witnesses credible
and consistent in their testimony that, over a period of years,
they had observed M1 routinely treating complainant differently than
his non-Black coworkers in both the manner with which M1 communicated
with complainant and the duties complainant was assigned, and that such
testimony sufficed as circumstantial evidence of racial bias on the part
of M1 toward complainant. Simply put, there is insufficient evidence
in the record to support the agency's claim that the AJ's credibility
determination was erroneous. See Embree v. Veterans Administration, EEOC
Request No. 05901054 (November 15, 1990). We agree that the evidence
presented at the hearing, as discussed above, was sufficient to support
the AJ's finding that M1 harbored racial animus toward complainant.<3>
Compensatory Damages
Complainant also claims on appeal that an award of compensatory damages is
appropriate in this case. The AJ addressed this issue in her decision,
but found that such an award was not appropriate, as, upon a finding of
discrimination, the agency was only liable for those damages that are
clearly shown to be caused by the discriminatory conduct. To receive
an award of compensatory damages, a complainant must demonstrate that
he or she has been harmed as a result of the agency's discriminatory
action; the extent, nature, and severity of the harm; and the duration
or expected duration of the harm. Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994) request for reconsideration
denied, EEOC Request No. 05940927 (December 11, 1995); 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.
In the instant case, after a careful review of the evidence presented,
we agree that complainant has failed to make this requisite demonstration
in support of a compensatory damages claim.
Conclusion
The Commission concludes that the AJ's finding of discrimination as to
complainant's November 19, 1996 fourteen-day suspension was sufficiently
supported by the factual record, as was the AJ's finding that complainant
failed to adequately support his request for a compensatory damages award.
Accordingly, we REVERSE the agency FAD in part, and AFFIRM in part,
as ordered below.
ORDER
The agency is ORDERED to take the following remedial actions:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall provide complainant with back pay lost, as well
as restoration of seniority and all other benefits lost, with interest,
including any sick time used, as a consequence of serving the fourteen-day
suspension. The agency shall determine the appropriate amount of back
pay, interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501. 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 appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. 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 shall expunge any and all reference to the suspension issued
November 19, 1996 from complainant's personnel records.
The agency shall conduct a minimum of sixteen (16) hours of EEO
sensitivity training for the Manager, Distribution Operations, found to
have discriminated against complainant as referenced above. This training
shall address management responsibilities with respect to eliminating
discrimination in the federal workplace and all other supervisory and
managerial responsibilities under equal employment law.
In regard to the finding of race discrimination under Title VII, the
agency shall provide attorney's fees and costs, as detailed below.
The agency shall post the attached notice, as detailed below.
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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Springfield, Illinois 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 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 (T0900)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the
agency issues its final decision on your complaint. 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
February 13, 2002
Date
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 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 facility in Springfield, Illinois (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 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 was found to have violated Title VII when it imposed
discipline upon an employee which was more harsh than the discipline
imposed upon those not of that employee's race. The agency was ordered
to: (1) pay the employee back pay and other benefits; (2) expunge from
the employee records any reference to the discipline imposed; (3) provide
equal employment opportunity sensitivity training to the management
official who was found to have discriminated against the employee; (4)
pay reasonable attorney's fees, if applicable; and (5) post this notice.
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 does not contest on appeal the AJ's finding of no
discrimination, and the agency's subsequent implementation of that
finding, in the three other agency actions presented by complainant in
his complaint. Nor does complainant challenge the AJ's finding that
complainant failed to state a prima facie case of unlawful discrimination
by the agency based on reprisal for his prior EEO activity. Accordingly,
the Commission does not address these issues in this appeal.
2 The agency does assert in its responsive brief that complainant
is attempting to raise a new claim of discrimination on appeal�that
the agency discriminated against complainant when M1 did not reduce
complainant's suspension during the grievance process. The agency
correctly points out that this was not an issue before the AJ, but there
is no indication in the documents presented by complainant on appeal
that he is now asserting this additional claim. The only reference
made by complainant to this issue is in his response to the agency's
statement in its FAD that M1 had no role in the decision to issue the
suspension to complainant. Complainant asserts that M1 was involved in
the decisionmaking process, and includes in his recitation of the evidence
in support of that assertion that M1 �was the step 2 designee in dealing
with grievances filed by comparison employees . . . and that [M1] used
his status to reduce the disciplinary actions taken against them in a
variety of instances. Particularly noteworthy in that regard is the fact
that [M1] refused to make any adjustment of the 14-day suspension that
was issued to [complainant]� but that M1 had reduced the fourteen day
suspension of another employee. Complainant makes no other reference to
this issue. It appears to the Commission that the context in which this
statement is made indicates that complainant is not making a new claim
of discrimination on appeal, and we will not treat this statement as such.
3 The agency asserts in its FAD that the AJ's reliance upon the alleged
racial animus of M1 was flawed for two reasons. First, it claims that
M1 had no meaningful role in the decision to issue the suspension to
complainant. The agency relies upon the testimony of S1 in asserting
that S1 was the only agency official involved in the decision to suspend
complainant. However, even if the agency is correct that M1's role
in the decision was limited to concurring in S1's decision to suspend
complainant, M1 has still played a role in effecting the agency action
which is sufficient to taint the action with any discriminatory animus M1
might hold against complainant. Therefore, we do not accept the agency's
argument that M1 had no meaningful role in issuing the suspension.