05980405
08-06-1999
Lucious Pryor, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lucious Pryor v. United States Postal Service
05980405
August 6, 1999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
Lucious Pryor, )
Appellant, )
) Request No. 05980405
v. ) Appeal No. 01961884
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 9, 1998, the United States Postal Service (hereinafter referred
to as agency) initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Lucious Pryor
v. United States Postal Service, EEOC Appeal No. 01961884 (February 5,
1998). EEOC Regulations provide that the Commissioners may, in their
discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
three criteria: new and material evidence is available that was
not readily available when the previous decision was issued, 29
C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law or regulation, or a misapplication of established
policy, 29 C.F.R. �1614.407(c)(2); and the decision is of such
exceptional nature as to have substantial precedential implications, 29
C.F.R. �1614.407(c)(3). For the reasons set forth herein, the agency's
request is denied.
ISSUE PRESENTED
The issue presented is whether it was properly found in the previous
decision that appellant was discriminated against when he was not selected
for a Mail Handler position, and as such, he was entitled to retroactive
placement in the position, with all appurtenant benefits.
BACKGROUND
Appellant, a former agency employee, filed a complaint of sex, age,
and disability (paranoid schizophrenia) discrimination when he was
not selected for the position of Mail Handler. He filed a second
complaint based upon race, age, mental disability, and reprisal when
he was denied reinstatement to the position of Letter Carrier after
recovery from an on-the-job injury. It appears from the record, that the
two complaints were consolidated and a hearing was held before an EEOC
Administrative Judge (AJ). During the course of the hearing, the issues
were characterized as: (1) a nonselection and (2) a failure to reinstate.
At the conclusion of the hearing, the AJ issued a decision in which she
found that appellant was discriminated against on the basis of his mental
disability with regard to issue (1).
The AJ noted that the agency explained that appellant was not selected
for the position of Mail Handler in 1993, because he stated during the
interview that he had a prior history of restricted sick leave. The AJ
found that this reason was a pretext for disability discrimination,
because the interviewer was also informed by appellant that the leave
restriction was due to his paranoid schizophrenia, which was under control
at the time of the interview, and had been for five years prior. The AJ
stated that she based her finding of discrimination on the fact that
the interviewer knew that appellant's absences were a direct result of
his disability, and the interviewer based his decision to not recommend
appellant solely on appellant's prior attendance record.<1> The AJ
recommended the following remedy for the discrimination: retroactive
placement in the position of Mail Handler, with all attendant benefits,
and damages for 50 percent of his non-pecuniary losses for moderate
psychological injuries for the period of March 15, 1993 and continuing.
It is noteworthy that the AJ found no discrimination with regard to issue
(2). The AJ found that the agency did not discriminate against appellant
when it decided not to reinstate him in October 1993, for the reason that
the agency based its decision on past performance problems that preceded
1993, the time at which his schizophrenia became symptomatic. These
included two step-increase deferments, a prior suspension, two letters
of warning, and a separation for abandonment of position. The AJ stated
that these prior disciplinary actions were unknown to the interviewer in
issue (1) because he did not review appellant's official personnel file
prior to interviewing appellant. He relied completely on appellant's
admissions during the course of the interview.
The agency, in its final decision, disagreed with the finding of
discrimination made by the AJ, and thus appellant appealed to this
Commission. In the previous decision issued on this matter, the
decision and reasoning of the AJ was upheld. It was held that the
agency's reason for not selecting appellant was pretextual because,
"[t]he only information that the interviewer had concerning appellant's
attendance problems was the information that appellant provided him,
which was that the absences were a direct result of his disability."
The agency was ordered in the previous decision to offer appellant the
position of Mail Handler, with all appurtenant benefits, and also award
him compensatory damages in the amount of $5,000.00. The latter award
was based upon the non-pecuniary losses that appellant established were
caused by his nonselection in 1993 only.
In its request for reconsideration, the agency claims that abuse of leave
procedures was a legitimate nondiscriminatory reason for not recommending
appellant for selection for the Mail Handler position. The agency
maintains that the fact that appellant stated that he took sick leave
because of his disability does not relieve him from the responsibility
of abiding by leave regulations. Accordingly, the agency contends that
the previous decision is of such an exceptional nature that it would
have substantial precedential implications if it is not reconsidered.
In comments submitted in opposition to the agency's request, appellant
maintains that he was denied a position because of his disability,
and not because of his history of restricted sick leave.
The Commission notes that the agency had authority to hire 20 persons for
the position of Mail Handler. The evidence establishes that prior to the
interview stage, all candidates took a written test for the position.
Appellant received a score of 84.2. Of the 200 candidates who took
the test, the record reflects that 19 were selected. Of those 19
selected, 11 had scores at or below appellant's score. Moreover, the
record contains a letter of recommendation from a Postmaster with whom
appellant worked in 1982-1983. He noted that when appellant left work in
1983 due to an occupational illness, he had 23 years of federal service.
The Postmaster stated that he supported appellant in his effort to return
to federal service. In a second letter of recommendation from another
agency supervisor, this official stated that appellant worked for him
for 12 years, and that his attendance was good, until he became ill.
He noted that the Postmaster stated that appellant was one of the best
letter carriers. Finally, appellant submitted a letter of recommendation
from his supervisor at his current job as a custodian, who stated that
appellant was dependable, and that his character and attendance were good.
She recommended that he be hired at any job.
ANALYSIS AND FINDINGS
The issue presented in this request is whether or not the agency's
articulated reason for not selecting appellant is a pretext for
disability discrimination.<2> As noted in the previous decision, it
is not enough for appellant to show that the agency's explanation for
its decision is not credible, appellant must show that discrimination
motivated the agency to act as it did. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993). The Commission finds that appellant has
made that showing in the present case.
The interviewer testified during the course of the hearing that until
appellant informed him about his record of restricted sick leave, and
the fact that it was related to an "emotional illness", he considered
appellant a good candidate for the position. According to the record,
after the interviewer was informed that appellant had an emotional
illness which caused him problems in the past, he noted on appellant's
application, "Might be problem if returned to service." The interviewer
made this notation, despite the fact that appellant presented him medical
evidence, as well as a letter from the Office of Personnel Management,
verifying that appellant was fully recovered and able to work.
Moreover, the interviewer knew that appellant had been gainfully employed
as a custodian in the private sector since 1989, without any attendance
problems. Despite the information about appellant's rehabilitation, he
terminated the hiring process for appellant, without even inquiring about
the specifics of the leave restriction, or verifying that appellant was
in fact placed upon such a restriction 18 or 20 years before when he was
employed by the agency. The Commission is convinced that the interviewer
reacted to appellant's diagnosis of a mental illness, and it is precisely
this stereotype that Congress sought to prohibit when it enacted the
Rehabilitation Act and the Americans with Disabilities Act (ADA).
Even though the agency argues that it reacted to appellant's history of
restricted sick leave, not his disability, the Commission finds that the
absences were a direct result of appellant's disability, and the agency
was well aware of this relationship. Accordingly, we conclude that the
agency's attempt to separate appellant's restricted sick leave from his
disability is unavailing. Given this finding, the Commission determines
that the previous decision, which found pretext in the agency's reason
articulated for not selecting appellant as a Mail Handler in 1993, is
supported by the evidence. Accordingly, we deny the agency's request
for reconsideration.
There remains the matter of the remedy to be afforded appellant. A job
applicant has a right to be free from discrimination throughout the
selection process. If the process is discriminatory at any phase, the
applicant must be awarded full relief, i.e., the position retroactively,
unless the employer shows by clear and convincing evidence, that even in
the absence of discrimination, the applicant would not have been selected.
Shipley v. Dugan et al., 874 F. Supp. 933, 941 (S.D. Ind. 1995); Nanty
v. Barrows Co., 660 F.2d 1327, 1333 (9th Cir. 1981); King v. Trans World
Airlines, Inc., 738 F.2d 255, 259 (8th Cir. 1984). Placing such an
onerous burden on the employer is proper, inasmuch as the employer's
unlawful acts caused the difficulty in determining what would have
resulted if there had been no discrimination. EEOC v. Spokane Concrete
Products, 534 F.Supp 518, 523-534 (E.D. Wash. 1982); Nanty v. Barrows,
supra, at 1333. Thus, in a case such as this one, appellant is entitled
to retroactive placement in the position, unless the agency can show by
clear and convincing evidence that, even absent the discrimination,
appellant would not have been hired by the agency. See also 29
C.F.R. �1614.501(b); Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976).
The Commission notes that in the previous decision, and also in the
AJ's decision, a finding of no discrimination was made with regard
to issue (2) because the agency based its decision not to reinstate
appellant on factors in appellant's work history which were unrelated to
his disability. The evidence in the file related to the reinstatement
reveals that it was standard practice for the selecting official to review
the personnel file of each candidate. When he did so with regard to
issue (2), he testified via an affidavit that there were other workplace
problems that appellant had which were unrelated to his mental condition,
and denied his reinstatement request for these reasons. These included
two step-increase deferments in 1981, a suspension in 1974, two letters
of warning in 1980 and 1982, and a separation for abandonment of his
position in 1970. It was found in the previous decision and also in the
AJ's decision, that these disciplinary actions raised enough concerns
to justify denying reinstatement.
Nonetheless, the agency presented no such argument or evidence with
regard to issue (1). Rather than presenting evidence that had appellant
proceeded in the selection process he would not have been hired because
of his past employment record, the agency merely argued that the
interviewer did not consider appellant's disability in the selection
decision. The agency had the opportunity during the investigation
of the complaint, and at the hearing presented on the complaint, to
present evidence that appellant would not have been selected even if
he had proceeded in selection process, but chose not to avail itself
of the opportunity. The Commission emphasizes that it is the agency's
burden to present clear and convincing evidence that it would have made
the same decision even in the absence of discrimination. While there is
some general testimony from the agency's Human Resource Specialist that
review of the individual's personnel file is made after the selection,
the Commission finds that this evidence does not clearly establish that
appellant would not have been selected for the Mail Handler position.
In this regard, we note that the testimony is vague and speculative.
Moreover, it is clear from the record that there were two separate
selections involved in this case, which involved different officials,
different locations, and even occurred at different times. The record
is devoid of evidence establishing that the information found in
appellant's personnel file when he was considered for reinstatement,
was involved in the selection decision for the Mail Handler position.
Nor can the Commission make the argument for the agency that if the
officials involved in the first nonselection had that information at
their disposal, they, too, would have disqualified appellant. In this
regard, we note that the selecting official involved in issue (2) did
not testify at the hearing, but merely provided an affidavit explaining
his reasons for not reinstating appellant. In the affidavit he makes
clear that he based his decision upon his own judgment that appellant was
not a good candidate for reinstatement, not any objective standard.<3>
For these reasons, the Commission finds no basis to disturb the finding
of discrimination and remedy awarded in the previous decision.<4>
CONCLUSION
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
agency's request fails to meet the criteria of 29 C.F.R. �1614.407(c).
It is therefore the decision of the Commission to deny the agency's
request. The decision of the Commission in EEOC Appeal No. 01961884
remains the Commission's final decision. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) The agency shall offer appellant placement into the position of Mail
Handler at the Inglewood Management Sectional Center, or an equivalent
position, retroactive to March 15, 1993. The agency shall accomplish
this action within sixty (60) calendar days of the date this decision
becomes final.
(2) The agency shall determine the appropriate amount of back pay and
other benefits due appellant, pursuant to 29 C.F.R. � 1614.501, no later
than sixty (60) calendar days after the date this decision becomes final.
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 appellant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. 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 referred in the statement entitled
"Implementation of the Commission's Decision."
(3) The agency shall take immediate steps to provide training to all
supervisory and managerial staff at its Inglewood Management Sectional
Center on the current state of the law on employment discrimination,
including discrimination based on disability and the goals behind the
law requiring equal employment opportunities for all.
(4) The agency shall post the attached Notice in accordance with the
directive below.
(5) Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to appellant nonpecuniary compensatory
damages in the amount of $5,000.00.
(6) The agency shall pay reasonable attorney's fees incurred in the
processing of this complaint as described below.
(7) 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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Inglewood Management Sectional
Center, Inglewood, California 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 (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(c)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.
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 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 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 (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:
August 6, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The Commission notes that the interviewer was not the selecting official.
He interviewed several candidates, and then referred them to the selecting
official, or decided, as he did in appellant's case, that the candidate
should not continue in the selection process.
2In this regard, the Commission notes that there is no dispute that
appellant has established a prima facie case of disability discrimination,
nor that the agency articulated a reason for the selection decision.
Accordingly, the Commission's decision will focus on whether or not
the agency's reason for the selection in issue (1) is a pretext for
disability discrimination. In addition, we will not disturb the findings
of no age or reprisal discrimination, and no disability discrimination
with regard to issue (2), inasmuch as neither appellant nor the agency
contests these findings.
3We note that the panel in Nanty opined that subjective job criteria
may present potential for "serious abuse" and such evidence is to be
considered "with much skepticism." Nanty v. Barrows Co., 660 F.2d at
1334.
4The Commission also finds no reason to disturb the award of compensatory
damages made in the previous decision. The compensatory damages awarded
were related to the 1993 nonselection only. There is no evidence
presented in the request which establishes that the award was either
excessive or too minimal to compensate appellant for his nonpecuniary
losses.