05A20341
07-05-2002
John H. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John H. Brown v. United States Postal Service
05A20341
07-05-02
.
John H. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20341
Appeal No. 01993996
Agency No. 4-H-350-1123-95
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On January 26, 2002, John H. Brown (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission or
EEOC) to reconsider the decision in John H. Brown v. United States Postal
Service, EEOC Appeal No. 01993996 (December 18, 2001). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. � 1614.405(b). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the decision will have a substantial impact
on the policies, practices or operations of the agency. Id. For the
reasons set forth herein, complainant's request is granted.
BACKGROUND
Complainant was employed as a Manager of In-Plant Support at the agency's
Birmingham, Alabama facility (the Birmingham facility). On November 8,
1994, complainant began reporting to a new mail processing manager
(RMO). On November 9, 1994, RMO told complainant that �sweeping
changes� were in the works and that complainant was not the person for
the position he was holding. RMO then informed complainant that he would
be detailed to the Sheffield, Alabama facility (the Sheffield facility)
as Officer-in-Charge. The Sheffield facility was located one hundred
thirty (130) miles from the Birmingham facility. Believing he was a
victim of discrimination, complainant filed a formal complaint maintaining
that he was discriminated against on the bases of sex and age (48) when,
on November 9, 1994, he was involuntarily detailed to another position.
Among other things, complainant sought compensatory damages. The record
indicates that complainant returned to his position in May 1995.
In its final decision dated April 14, 1999, the agency found that
complainant failed to establish prima facie cases of sex or age
discrimination. Assuming arguendo, that complainant did establish a
prima facie case of sex and age discrimination, the agency articulated
a legitimate non-discriminatory reason for its action, namely that
complainant was placed on a detail because of his poor performance and
service. This information was contained in the EEO counselor's report.
The agency then determined that complainant failed to present
evidence to prove that the agency's articulated reasons were pretext
for discrimination. The agency also noted that RMO supervised eleven
(11) other managerial positions, and of those 11 positions, ten (10)
positions were held by males and three (3) positions were held by
individuals older than complainant.
The previous decision found that while complainant had not proven a
prima facie case of sex discrimination, he did establish a prima facie
case of age discrimination. Additionally, the previous decision found
that the agency failed to meet its burden of articulating a legitimate,
nondiscriminatory reason for its action. Specifically, the decision
noted that the RMO was provided three opportunities to submit an EEO
investigative affidavit, but he failed to do so. Because of the RMO's
uncooperativeness with the investigation, the previous decision found
that the agency did not set forth with sufficient clarity, reasons
for complainant's involuntary detail such that he had a full and fair
opportunity to demonstrate that those reasons were pretext. Moreover,
the previous decision noted that the agency provided no explanation
for RMO's failure to provide an investigative affidavit, nor did the
agency provide evidence that complainant's performance was poor or that
his service was bad. Finally, the decision took note of the fact that
complainant was replaced by a younger employee.
On request for reconsideration, complainant claims that the previous
decision erred in finding that he failed to establish a prima facie case
of sex discrimination. Complainant maintained that two female employees
who were younger than he, C-1 and C-2, were not involuntarily detailed out
of their positions as was he. Complainant also noted that, on appeal, he
indicated that C-1 was the individual who replaced him as Manager at the
Birmingham facility. Finally, complainant argued that C-1 and C-2 were
similarly situated to him because they were all supervised by the RMO.
The agency did not respond to complainant's request for reconsideration.
ANALYSIS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument or evidence which
tends to establish that at least one of the criteria of 29 C.F.R. �
1614.405(b) has been met. The Commission's scope of review on a request
for reconsideration is narrow. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989). A reconsideration
request is not merely a form of a second appeal. Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). After a careful review
of the record, the Commission finds that complainant's request meets
the regulatory criteria of 29 C.F.R. � 1614.405(b)(1). In order to
establish a prima facie case of discrimination based on sex, complainant
argued that: (1) he was male, a member of a protected group; (2) he
was subjected to an adverse employment action when he was involuntarily
detailed to the Sheffield facility; and (3) he was, at the very least,
treated less favorably than C-1, a female employee, who was placed in
his former position. To establish a prima facie case, complainant need
only present evidence which, if unrebutted, would support an inference
that the agency's actions resulted from discrimination based on sex.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Complainant
showed that a comparative individual, from outside of his protected group,
was treated more favorably than he was treated. This was sufficient to
establish a prima facie case of discrimination based on sex. Upon finding
that complainant established a prima facie case of sex discrimination,
we also find that all the reasons set forth in the previous decision that
justified a finding of age discrimination are now equally applicable to
the basis of sex. Therefore, we now find that the agency discriminated
against complainant on the basis of his sex and age.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to grant the complainant's request.
Accordingly, we reverse the determination of the previous decision and
the agency that complainant failed to establish a prima facie case of
sex discrimination. EEOC Appeal No. 01993996, as modified, remains the
Commission's final decision. The agency will comply with the previous
decision's order that has been modified to reflect the holding of this
decision. There is no further right of administrative appeal on the
decision of the Commission on a Request to Reconsider.
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency shall provide training in the obligations and duties imposed
by Title VII and the ADEA to RMO and any other agency official involved
in the decision to involuntarily detail complainant.
The agency shall consider taking disciplinary action against RMO and
any other management official identified as being responsible for the
decision to involuntarily detail complainant. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice as to his claim for
compensatory damages. Complainant shall submit objective evidence in
support of his claim for compensatory damages within forty-five (45)
calendar days of the date he receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall process the claim in accordance with 29 C.F.R. � 1614.108(f).<1>
The agency shall post the attached notice as provided 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 benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Birmingham, Alabama 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____07-05-02______________
Date
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), 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 DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions or
privileges of employment. The United States Postal Service, Birmingham,
Alabama facility confirms its commitment to comply with these statutory
provisions.
The United States Postal Service, Birmingham, Alabama 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 United States Postal Service, Birmingham, Alabama facility has
been found to have discriminated against an employee when he was
involuntarily detailed to another facility. The United States Postal
Service, Birmingham, Alabama facility has been ordered to provide
compensatory damages, attorney fees and Title VII and ADEA training to
all managers who were involved in the decision to detail the employee
to the other facility. The United States Postal Service, Birmingham,
Alabama facility 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.
The United States Postal Service, Birmingham, Alabama 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 16141The Commission has long held that compensatory
damages and attorney's fees are not available for violations of the ADEA;
consequently, any compensatory damages and attorney's fees awarded in
this case must be limited to the Title VII violation only.