01980931
11-25-1998
Harry D. Telles, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Harry D. Telles v. United States Postal Service
01980931
November 25, 1998
Harry D. Telles, )
Appellant, )
)
v. ) Appeal No. 01980931
) Agency No. 4E-870-1158-95
William J. Henderson, ) Hearing No. 350-96-8133X
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On November 7, 1997, Harry D. Telles (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated October 24,
1997, concluding he had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq., the Age Discrimination in Employment Act (ADEA) of 1967, as
amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In his complaint, appellant had
alleged that officials at the agency's Las Cruces, New Mexico, Post
Office discriminated against him on the bases of his national origin
(Hispanic), sex (male), age (DOB: 11/18/49) and/or physical disability
(service-connected disability--lumbar spine condition), when he was
terminated during his probationary period as a Part-Time Flexible (PTF)
City Letter Carrier. This appeal is accepted in accordance with the
provisions of EEOC Order No. 960.001.
The record establishes that appellant was hired by the Las Cruces Post
Office as a PTF City Letter Carrier on May 13, 1995. He was terminated
from that position effective July 13, 1995, with twenty-seven days left
on his ninety-day probationary period. The written notice appellant
received from the agency stated that the reason for his termination
was "unsatisfactory job performance." Little detailed explanation of
appellant's performance deficiencies are contained in the record other
than thirty and sixty-day performance evaluations which were completed
in a summary fashion. Appellant named other employees whom he alleged
were similarly situated but treated more favorably.
On September 13, 1995, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against him
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On August 21, 1995, the AJ issued a decision without a hearing, finding
appellant had been discriminated against by the agency on each of the
bases alleged. In reaching this conclusion, the AJ noted that, after its
motion for a continuance because its usual representative was unavailable
was denied, the agency refused to appear at the hearing, present evidence
or arrange for a room for the hearing. The AJ provided the agency with
an opportunity to show cause why sanctions should not be imposed for
its actions in this matter. The AJ noted that nothing in the agency's
response addressed its efforts to obtain another representative in the
two and one-half month period between the agency's receipt of notice
of the hearing and the actual hearing date, despite the AJ's clear
position that the hearing would proceed as scheduled. Therefore, the
AJ concluded the agency had acted in bad faith in depriving appellant of
his opportunity to prove his case at hearing. Therefore, the AJ decided
that the circumstances justified sanctioning the agency by issuing a
decision in appellant's favor.
On October 24, 1997, the agency issued its final decision, rejecting the
AJ's recommended decision, and entering a finding of no discrimination.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis
to disturb the AJ's finding of discrimination. Despite the agency's
arguments to the contrary, the Commission is unpersuaded that the AJ
abused her discretion in denying the agency's motion for a continuance
and in imposing sanctions when the agency refused to participate in
the hearing. The Commission concurs with the AJ's conclusion that
the agency failed to proffer adequate justification for its actions in
this matter. EEOC regulations provide its administrative judges with
the power to regulate the conduct of hearings and require agencies to
produce all witnesses approved by the AJ. 29 C.F.R. Sect. 1614.109(c).
The regulations further provide, at 29 C.F.R. Sect. 1614.109 (d)(3)(iv),
that when an agency fails to provide for the attendance of witnesses,
the AJ, in appropriate circumstances, may issue a decision fully or
partially in the complainant's favor. The Commission, after a careful
review of the record, finds the AJ in this case was well within her
authority when she sanctioned the agency when it "knowingly, willfully,
and in bad faith, refused to follow the orders of the administrative
judge and produce the witnesses ordered to appear, to the significant
prejudice of the complainant."
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of discrimination. In order to remedy appellant for its
discriminatory actions, the agency shall, comply with the following
Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make an unconditional offer of employment
to appellant of the position of PTF City Letter Carrier in the Las
Cruces, New Mexico post office or a substantially equivalent position.
If appellant accepts this offer, he shall be provided any retraining
necessary to perform in the position and it shall be assumed that he
has successfully completed any probationary period.
(B) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award appellant back pay, with interest,
for all wages and benefits lost between the date of his termination on
July 14, 1995, and the date he returns to duty or declines the offer
of reinstatement. The agency shall determine the appropriate amount
of back pay, interest and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501. The appellant 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. The appellant 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."
(C) The agency shall post at the Las Cruces, New Mexico, 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.
(D) The agency shall conduct a supplemental investigation pertaining to
appellant's entitlement to compensatory damages incurred as result of
the agency's discriminatory actions which resulted in his termination.
See Feris v. Environmental Protection Agency, EEOC Appeal No. 01934828
(August 10, 1995), request to reopen denied, EEOC Request No. 05950936
(July 19, 1996); Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). See also, Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992), request for reconsideration denied,
EEOC Request No. 05930306 (February 1, 1993). The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages. Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights.
(E) 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.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
Nov 25, 1998
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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, as amended,
42 U.S.C. �2000e et seq., the Rehabilitation Act of 1973, as amended,
29 U.S.C. Sect. 791 et seq., and the Age Discrimination in Employment
Act (ADEA) of 1967, as amended, 29 U.S.C. �621 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 Las Cruces, New Mexico, Post Office supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Las Cruces, New Mexico, Post Office has been found to have
discriminated against the individual affected by the Commission's finding
on the bases of his national origin, sex, physical disability and age
when he was terminated from his position as a PTF City Letter Carrier.
The Commission has ordered that this individual be provided reinstated
with an appropriate back pay award. The Las Cruces, New Mexico, Post
Office will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Las Cruces, New Mexico, Post Office will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
____________________
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614