0120091395
04-15-2009
Joseph A. Lee, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph A. Lee, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091395
Agency No. 1G-701-0001-08
Hearing No. 450-2008-00252X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 5, 2009 final action concerning his equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Laborer Custodial, PS-3, at the agency's Lafayette Processing and Distribution Center (P&DC) in Lafayette, Louisiana.
On October 12, 2007, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On January 17, 2008, complainant filed a formal EEO complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior EEO activity when:
(1) on September 18, 2007, his request for a change of schedule was denied; and
(2) on August 14, 2007, he felt very threatened and subsequently, he went home on stress and he was placed off duty August 17 - 20, 2007.
On February 4, 2008, the agency issued a partial dismissal. The agency accepted for investigation claim (1). However, the agency dismissed claim (2) on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
Following the investigation concerning claim (1), complainant was provided with a copy of the report of investigation and requested a hearing before an Administrative Judge (AJ). Following a hearing on December 4, 2008, the AJ issued a decision finding discrimination.
In his December 4, 2008 decision, the AJ found that the evidence supported a determination that complainant was discriminated against based on his sex and in reprisal for prior protected activity regarding claim (1), when his submission of a request for a change of schedule to attend a doctor's appointment was denied, even though his supervisor (S1) approved three very similar requests for three female employees whom he supervised. The AJ found that one of the three female employees S1 approved requests did not have a prior EEO activity.
The AJ found S1's reasons for denying complainant's request for a change of schedule not credible. The AJ noted that S1 testified that before receiving complainant's request for a change of schedule, S1 received an e-mail from his manager that changes of schedule were to be granted only for the benefit of the agency. The AJ further noted that S1 stated that if complainant had come into work two hours earlier, he would not have been able to work in the area in which he needed to work because other employees would have been in the area at the time. S1 stated, however, that complainant would have been able to accomplish all of his duties for the day if the request had been granted.
The AJ noted that according to S1, when he approved the schedule changes for the two female employees, he deemed the changes to be beneficial for the agency. Specifically, the AJ noted that S1 "did so because, he basically seems to conclude they would then be happier and thus more productive for the postal service." Specifically, the AJ concluded that S1 provided no further explanation as to how the agency was to benefit from one of the two female employees being able to switch her days off and how such action would not provide an excess of custodial employees on one day and a shortage on another. Moreover, the AJ concluded that S1's decision granting one female employee's change in schedule request so she can avoid having to use her annual or sick leave in order to obtain medical documentation to support her application for FMLA treatment of her absences was more for the employee's benefit not that of the agency.
The AJ found S1's reasons for denying complainant's request for a schedule change to be a pretext for discrimination against complainant, in retaliation for his filing and prosecuting EEO claims against him, and because of his sex. The AJ noted that at the time complainant was denied the change of schedule, he was already receiving medical care from a mental health provider. The AJ noted in his testimony, complainant testified that the denial of change of schedule request required him to use his annual or sick leave to get the care he needed exacerbated the stress with which he was trying to deal. The AJ noted that according to complainant, he had difficulty in sleeping which was made worse by the denial of the specific change of schedule and that he tried to avoid further increases in his stress by simply not requesting any more changes of schedule for his appointments with his provider and took either sick or annual leave instead.
After a review of the testimony, the AJ awarded complainant $1,000.00 in non-pecuniary compensatory damages to compensate him for the discrimination. Specifically, the AJ found that complainant suffered stress and difficulty sleeping as a result of the denial of his request for a change of schedule.
As for the remaining remedies, the AJ ordered the agency to reinstate complainant's leave used for the two hours which he was required to use in order to attend his doctor's appointment on September 25, 2007 as well as for any subsequent leave, up to two hours of leave, taken after the denial of his September 18, 2007 change of schedule request; and post a notice on all employee bulletin boards stating that it was found in violation of Title VII.
The agency issued a final action dated January 5, 2009, implementing the AJ's finding of discrimination concerning claim (1).
On appeal, complainant argued that his damage award should be increased based on the amount of stress and harassment which extends to April 2006 when he first filed his EEO complaint when S1 started passing him over for overtime and he had to file grievances. Specifically, complainant stated "I not only had to deal with the stress relating to the change of schedule incident but at the same time this was going on I had to deal with [S1] putting more stress on me by deliberately passing me over for overtime as I was on the overtime list."
In response, the agency argued that the AJ correctly figured complainant's restoration of leave and the compensatory damage amount was consistent with damages imposed by the Commission; and that the damage amount should not be increased. Finally, the agency requested that the Commission to uphold the AJ's findings and damage award by dismissing complainant's appeal.
The Commission discerns no basis to disturb the AJ's findings. Specifically, the Commission determines regarding the award of $1,000 in compensatory damages, the AJ noted that complainant testified that his difficulty in sleeping was exacerbated by the denial of the schedule change, and that he attempted to avoid further stress increases by simply not requesting schedule changes for medical appointments, but instead took either sick or annual leave. Moreover, the AJ found that no further evidence was produced regarding the harm suffered by complainant due to the schedule change request denial. We find that the findings of fact are supported by substantial evidence, and that the AJ correctly applied the appropriate regulations, policies and laws.
Accordingly, we AFFIRM the agency's final action implementing the AJ's finding of discrimination concerning claim (1) and REMAND this matter to the agency to take remedial action in accordance with this decision and the ORDER below.1
ORDER
To the extent, that it has not already done so, the agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes final, the agency shall tender to complainant $1,000.00 in non-pecuniary compensatory damages.
2. Within sixty (60) calendar days of the date this decision becomes final, the agency reinstate complainant two hours of leave used in order to attend his doctor's appointment on September 25, 2007 as well as for any subsequent leave, up to two hours of leave, taken after the denial of his September 18, 2007 change of schedule request.
3. The agency shall post a notice in accordance with the paragraph 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 verifying that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Lafayette Processing and Distribution Center in Lafayette, Louisiana, 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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
April 15, 2009
__________________
Date
1 On appeal, complainant does not challenge the agency's February 4, 2008 partial dismissal of claim (2) (that he was discriminated against on the bases of race, sex and in reprisal for prior EEO activity when on August 14, 2007, he felt very threatened, subsequently he went home on stress and he was placed off duty August 17-20, 2007). Therefore, we have not addressed this issue in our decision.
??
??
??
??
2
0120091395
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091395