07a50073
12-22-2005
Julius Sims, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Julius Sims v. United States Postal Service
07A50073
December 22, 2005
.
Julius Sims,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A50073
Agency No. 4H-300-0149-03
Hearing No. 110-2004-00349X
DECISION
Following its May 23, 2005 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the bases of race (African-American), sex (male),
and color (Black). For the following reasons, the Commission reverses
the agency's final order.
Complainant, a Mail Processor employed at the agency's Newnan Post Office
facility in Newnan, Georgia, filed a formal EEO complaint with the agency
on July 15, 2003, alleging that the agency discriminated against him on
the bases race, color, and sex when:
(1) he was issued a Notice of Indefinite Suspension - Crime Situation
and was charged with improper off-duty conduct.
Background
On February 28, 2003, complainant was arrested off the work premises for
driving under the influence (DUI). Shortly thereafter law enforcement
officials added the charge of selling cocaine. Upon reading a report
about the arrest in the local newspaper a few days later, complainant's
supervisor (RMO1: Caucasian, White, male) and the Postmaster (RMO2:
Caucasian, White, male) went to the local police station to confirm
the report. They met with a Police Detective (PD) who confirmed that
the police had issued a warrant for complainant's arrest and also
inquired whether RMOs 1& 2 could identify a man on a police videotape
seen selling drugs to a police informant. When shown the videotape,
RMO's 1 & 2 identified complainant as the man selling the drugs.
Complainant returned to work on March 17, 2003 whereupon RMO1 issued him
the Notice of Indefinite Suspension - Crime Situation. The Notice stated
that complainant was charged with improper off-duty conduct due to his
arrest for DUI and selling drugs. See Report of Investigation (ROI)
Exhibit 2. The Notice further stated that the indefinite suspension
would last until a resolution had been reached on the criminal charges.
Id. On September 12, 2003, the State Assistant District Attorney (ADA)
wrote a letter informing RMO 2 that the sale of cocaine charges against
complainant had been dropped. See ROI, Exhibit 15. The letter stated
that two ADAs had viewed the videotape of the drug sale, and that neither
ADA was able to confirm that the person selling drugs was complainant.
See id. Complainant filed a union grievance that was sustained on the
grounds that RMO1 violated complainant's due process rights by refusing to
grant him Union representation. See ROI, Affidavit A, p. 12. Complainant
was reinstated and made whole for the period of the suspension.
Complainant filed a formal complaint alleging discrimination as described
above. 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 that complainant established a prima
facie case of discrimination by providing sufficient evidence to raise an
inference of discrimination. Specifically, the AJ noted that a coworker
(CW: Caucasian, White, female) testified that RMOs 1 & 2 used racial
epithets and racially derogatory language when referring to complainant
and others of the same racial background. The AJ further found that
complainant established that more likely than not, the articulated reason
provided by the agency for the Notice of Indefinite Suspension and charge
of improper off duty conduct, were a pretext for discrimination.
In reaching this conclusion, the AJ found that CW credibly testified that
RMO1 disliked complainant and bore a grudge against him, and that RMOs
1& 2 had a discriminatory animus against African Americans in general.
The AJ further found that RMOs 1 & 2 �went out of their way� to ensure
complainant's conviction and continuously contacted the police department
to find out about the status of the case. AJ's Decision, p. 10.
Finally, the AJ found that RMO's 1 & 2 were the only two people who
believed complainant was the drug-seller on the police videotape. The AJ
noted that, upon seeing the tape herself, she concluded �the drug dealer
looked nothing like� complainant. Id., p 11. The AJ subsequently issued
a decision ordering, inter alia, $20,000.00 in nonpecuniary compensatory
damages, $500.00 in pecuniary damages, and $7,118.82 in attorney's fees.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by admitting the videotape into evidence.
The agency argues that the agency was denied the opportunity to view the
videotape prior to the hearing and was prejudiced thereby. The agency
further argues that it was not provided the opportunity to authenticate
the videotape and confirm that the tape produced at the hearing was
the same tape used in complainant's arrest and viewed by RMO's 1 & 2.
The agency argues that the admission of the tape was prejudicial because
the AJ �clearly relied on the videotape to determine the credibility of
the agency's witnesses.� Agency's Appeal Brief, p 5. The agency did
not otherwise dispute the AJ's findings or the remedies ordered.
Analysis and Findings
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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. Regarding the admission
of the videotape, we note initially that 29 C.F.R. � 1614.109(e)
provides the AJ with broad discretion in the conduct of hearings and
the development of the record, including the admission of evidence.
See MD 110, Chapter 11, 7-5. We therefore find that the AJ did not
abuse her discretion in admitting the tape into evidence. Furthermore,
even assuming that the AJ had not seen the videotape, the AJ's finding
of discrimination is supported by substantial evidence. In this regard
we note that Complainant testified that RMO 1 cursed and yelled at him,
Hearing Transcript (HT) p. 31, and that RMOs 1 & 2 treated African
American employees differently than they treated Caucasians. Id,
p. 32. This testimony was corroborated by CW, who testified that RMO1
treated complainant differently from Caucasian employees, that he �hated
(complainant and) . . . had it in for him,� id., p. 48, and that RMOs 1&
2 used racial epithets against complainant and other African Americans.
Id. 43-4, 46, 50. CW further testified that RMO2 referred to the Manager,
an African American, as �Willie B� id., pp. 47, 49, which is the name
of a gorilla at the Atlanta zoo. Id.
CW further testified that she knew PD, the officer who had charged
complainant, because CW's husband was a police officer on the Newnan
police force. CW further testified that PD told her that RMO2 �wore
out [PD's] pager� by constantly calling at odd hours of the night to
inquire about the status of the criminal case against complainant. Id.
The AJ found CW to be a credible witness. We note that the Commission has
held that �an AJ's credibility determination are entitled to deference
due to the judges' first-hand knowledge through personal observation
of the demeanor and conduct of the witness at the hearing.� Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
Furthermore we note that RMO2 has not explained why he and RMO 1<1>
took the trouble to go in person, first to the State Police and then
to the local Police, HT., p. 88, upon reading of complainant's arrest
in the newspaper, rather than make inquiries by telephone or mail.
Given the above, we find the AJ's finding that RMO's 1 & 2 �went out
of their way,� AJ's Decision, p. 10, to ensure that complainant was
convicted of selling cocaine to be supported by substantial evidence.
Regarding the identification on the videotape, the record shows that
two Assistant District Attorneys did not feel that the person seen on
the videotape was complainant, thus further impugning the credibility of
RMO's 1 & 2. For all of the above reasons, we find no basis to disturb
the AJ's finding of discrimination.
Regarding the award of nonpecuniary compensatory damages, pecuniary
damages, and attorney's fees, we note that the agency has not specifically
disputed these awards, other than to argue that the overall finding of
discrimination is erroneous. The AJ found that complainant incurred
feelings of worthlessness, difficulty sleeping, anxiety, night sweats,
nightmares, indigestion, stomach cramps, weight loss, and headaches,
all due to the agency's discrimination. Several Commission decisions
have addressed compensatory damages in cases similar to complainant's.
See Telles v. United States Postal Service, EEOC Appeal No. 01994535
(January 30, 2002) (awarding $20,000.00 in nonpecuniary damages for
depression, feelings of inadequacy and failure, loss of credit due
to bankruptcy, and marital problems); Colwell v. United States Postal
Service, EEOC Appeal No. 01985789 (June 13, 2001) (awarding $20,000.00
in nonpecuniary damages for complainant's depression and emotional
distress, loss of credit standing and loss of professional standing);
Perez v. Unites States Postal Service, EEOC Appeal No. 07A20117 (July 23,
2003) ($20,000.00 awarded where complainant experienced anger, bitterness,
humiliation, depression, marital problems and financial setbacks).
Given the above, we find that the evidence supports an award of $20,000.00
in nonpecuniary compensatory damages. This amount takes into account
the severity and the duration of the harm done to complainant by the
agency's action. The Commission further notes that this amount meets
the goals of not being motivated by passion or prejudice, not being
"monstrously excessive" standing alone, and being consistent with the
amounts awarded in similar cases. See Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)); US EEOC v. AIC
Security Investigations, Ltd., 823 F.Supp. 573, 574 (N.D. Ill 1993).
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 remands the matter to the agency
to take corrective action in accordance with this decision and the Order
below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
(1) Within forty five (45) days of this decision becoming final,
the agency is ordered to pay complainant the sum of $20,000.00 in
nonpecuniary compensatory damages and $500.00 in pecuniary damages.
(2) Within forty five (45) days of this decision becoming final, the
agency shall pay the amount of $7,118.82 in attorney's fees.
(3) The agency shall consider appropriate disciplinary action against the
individual identified in the decision as RMO2 and report its decision
to the Commission. 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. The Commission does not consider training to
be a disciplinary action.
(4) The agency shall conduct at least twenty (20) hours of training
for RMO2. The training shall address management's responsibilities
with respect to eliminating discrimination in the federal workplace and
management's responsibilities under the equal employment opportunity laws.
The training shall place special emphasis on Title VII of the Civil
Rights Act of 1964.
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 Newnan Post Office facility in
Newnan, Georgia, 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
December 22, 2005
__________________
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 the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII), 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, Newnan
Post Office facility, Newnan, Georgia, confirms its commitment to comply
with these statutory provisions.
The United States Postal Service, Newnan Post Office facility, Newnan,
Georgia, 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, Newnan Post Office facility, Newnan,
Georgia, has been found to have discriminated against an employee when
the employee was issued a Notice of Indefinite Suspension. The United
States Postal Service, Newnan Post Office facility, Newnan, Georgia, has
been ordered to provide compensatory damages to the affected employee
and provide training regarding reprisal under Title VII to appropriate
managers. The United States Postal Service, Newnan Post Office facility,
Newnan, Georgia, 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, Newnan Post Office facility, Newnan,
Georgia, 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
1The record indicates the RMO1 is deceased and did not testify at the
hearing.