07A00046
02-21-2002
James Ozanian, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.
James Ozanian v. United States Postal Service
07A00046
February 21, 2002
.
James Ozanian,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 07A00046
Agency No. 1B029003898
Hearing No. 160-99-8715x
DECISION
Concurrent with the issuance of its August 10, 2000 final order, the
agency filed a timely appeal which the Commission accepts pursuant to
29 C.F.R. � 1614.405.
Complainant, a Clerk at the agency's Providence, Rhode Island location,
filed a formal EEO complaint with the agency on October 30, 1998,
alleging that he was subjected to unlawful discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. Specifically, complainant alleged
that he was subjected to retaliation for prior EEO activity (EEO complaint
of disability-based discrimination) when:
he was restricted to work in one location; and
he was denied the opportunities afforded other employees.<1>
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found no discrimination on three of
complainant's allegations, but concluded that complainant was subjected
to retaliation in regard to Issues 1 and 2. The AJ concluded that
complainant was restricted to work in one location and was thereby denied
the opportunity to work on different sort plans, an opportunity that
other employees were given. The AJ found that the agency's articulated
reason for this action, e.g. that placing the ergonomic chair complainant
used in other locations would be a safety hazard, was a pretext for
retaliatory animus.
The AJ noted that the Acting Manager of Distribution Operations (MDO)
told complainant's supervisor (S1) that complainant would be assigned to
a particular work area and that his chair would be assigned to a position
at the end of an aisle, directly behind S1's desk. The AJ noted that
MDO testified that this would cause less of a safety concern and that he
sought guidance from his supervisor (S2) with respect to this decision.
The AJ determined, however, that the chair was used by other employees
in different areas, with the approval of MDO, and that no safety issues
had been raised due to this practice. Moreover, the AJ noted that
another individual who occasionally supervised complainant (AS) found
it unproductive to have complainant assigned to a particular location,
as it prevented the mail from getting out efficiently. When AS was
supervising complainant, he assigned complainant to different locations
where he was needed and never found complainant's use of the ergonomic
chair to cause safety issues. From this testimony, the AJ concluded that
MDO provided inconsistent testimony and that the evidence established that
the chair was used by other employees in various locations. Finding the
agency's explanation to be pretextual, the AJ concluded that complainant
was assigned to one location and thereby denied the opportunity to work
on other sort plans for retaliatory reasons.
The AJ therefore ordered the agency to provide relief, including $1,000.00
in compensatory damages. The agency was also ordered to review the
matter giving rise to the complaint and the failure to timely notify
witnesses approved for hearing and determine whether disciplinary action
was warranted. Finally, the AJ ordered the agency to conduct refresher
EEO training for all managers and supervisors in the Providence facility,
with a special emphasis on the prohibition against reprisal, and to notify
all employees in the facility of their right to be free of reprisal.
The agency's final order declined to implement the AJ's decision.
On appeal, the agency argues that the AJ erred in finding discrimination,
noting that complainant failed to establish a prima facie case of
retaliation. Specifically, the agency argues that complainant failed
to prove that the agency officials involved in the actions at issue
were aware of his prior protected activity and that complainant failed
to prove a causal nexus between his prior protected activity and the
adverse action. In support of this argument, the agency notes that MDO
and S1 testified that they did not have knowledge of complainant's prior
EEO activity.
In response, complainant argues that the AJ's decision was proper and
should be upheld.
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).
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. As the AJ noted, in a reprisal claim,
and in accordance with the burdens set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)), Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may
establish a prima facie case by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Although the agency argues that complainant failed to establish that
the relevant management officials were aware of his prior EEO activity,
the AJ determined that management officials were in fact motivated by
this activity in deciding to restrict complainant to one work location.
This finding is supported by substantial evidence. The record establishes
that the ergonomic chair was purchased for complainant by the agency after
this Commission determined that the agency failed to provide a reasonable
accommodation for complainant's disability and ordered it to do so.
As noted by complainant during the investigation and on appeal, the
chair was the only one like it on the workroom floor and many employees
in the area asked questions about why complainant received the chair.
It is undisputed that S2, MDO's supervisor, was aware that the chair was
received as part of an �EEO settlement.� Moreover, S2 testified that he
spoke with MDO about the chair and told MDO that complainant received
the ergonomic chair as part of a settlement. From this evidence, it is
reasonable to conclude that despite his claim to the contrary, MDO was
aware the complainant had previously requested a reasonable accommodation
and/or filed an EEO complaint of disability-based discrimination.
Furthermore, MDO testified that he sought guidance from S2 regarding
where to place complainant and his chair before informing S1 that
complainant must sit in the chair at the end of the aisle directly behind
S1's desk. S2 stated that MDO made the decision, but did not deny that
he was involved in the decision-making process. From this evidence,
it is reasonable to conclude that S2, who without question was aware of
complainant's prior EEO activity, was also involved in the decision to
restrict complainant to one work location.
Moreover, a nexus exists between complainant's prior EEO activity and
the adverse action at issue. The actions at issue took place less
than three months after this Commission determined that the agency had
discriminated against complainant in an earlier incident. Indeed, the
record establishes that the ergonomic chair was purchased for complainant
subsequent to an order issued by the Commission and that several days
after it arrived, MDO informed S1 that complainant would only be allowed
to work in one location. Accordingly, complainant established a prima
facie case of retaliation.
As noted above, the AJ determined that the agency's explanation for its
actions�that allowing complainant to use his chair in other locations
was a safety concern-- was a pretext for retaliation. In so finding, she
determined that other employees used complainant's chair while working in
various locations around the facility. The AJ also noted that preventing
complainant from working on different sort plans interfered with his
work performance. These findings are supported by substantial evidence.
Testimony established that other employees used complainant's chair
in various locations and that no safety concerns were ever raised.
Moreover, an employee who occasionally served as complainant's acting
supervisor during the relevant time testified that using complainant in
only one location was unproductive. Accordingly, we find no reason to
disturb the AJ's finding that complainant was subjected to retaliation.
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 and directs the agency to take
corrective action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial actions:
within sixty (60) days of the date this decision becomes final, award
complainant the sum of $1,000.00 in compensatory damages;
review the matter giving rise to this complaint and the failure to
timely notify witnesses approved for the hearing and determine whether
disciplinary action is warranted;
within sixty (60) days of the date this decision becomes final,
provide EEO training, with a special emphasis on the prohibition against
retaliation, for all managers and supervisors in the Providence, Rhode
Island facility;
award attorney's fees, if applicable, as described below; and
post the attached notice.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Providence, Rhode Island 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
February 21, 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 Section 501 of the Rehabilitation Act of 1973, as amended,
42 U.S.C. � 791 et seq. has occurred at the United States Postal Service,
Providence, Rhode Island facility (hereinafter �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 the Rehabilitation Act when
it retaliated against an employee by requiring him to work in only one
location and thereby denying him the opportunities that other employees
received. The agency was ordered to: (1) award complainant $1,000.00 in
compensatory damages; (2) review the matter giving rise to the subject
complaint and the failure of certain agency employees to timely notify
witnesses approved for hearing and determine whether disciplinary action
is warranted; (3) conduct EEO training for supervisors and managers in
the facility; (4) award 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:
1 In his complaint, complainant raised five allegations of discrimination.
After a hearing, an EEOC Administrative Judge (AJ) determined that
complainant had been subjected to discrimination in regard to the
two allegations noted above, but that he was not retaliated against
in regard to the other three allegations raised in the complaint.
The agency adopted the AJ's finding of no discrimination on the other
three allegations and appealed the finding of retaliation on Issues 1
and 2 above. Complainant did not file an appeal. In response to the
agency's appeal, complainant asked that the AJ's decision be upheld.
Accordingly, this decision will only address the two issues noted above.