01a00228
08-14-2002
Martha J. Lindsey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Martha J. Lindsey v. United States Postal Service
01A00228
08-14-02
.
Martha J. Lindsey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00228
Agency No. 1G-761-1124-96
Hearing No. 360-97-8182X
DECISION
Martha J. Lindsey (hereinafter referred to as complainant) filed a timely
appeal from the September 29, 1998, final decision of the United States
Postal Service (hereinafter referred to as the agency) concerning a
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
In her formal complaint dated August 25, 1996, complainant claimed
discrimination based on sex, reprisal, and age (DOB 5-12-40) when
the Manager, Distribution Operations (MDO), altered her grievance and
circulated it among employees for comment.<1> Complainant's statement
stated, in part, that the MDO used co-workers to harass and intimidate
her; the MDO, after removing most of her statement, circulated this
portion of her statement with the question "Have I ever asked you
personally to harass or intimidate [complainant]?"
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
finding that the agency discriminated against complainant on all bases
alleged and that the MDO's actions constituted an adverse action against
complainant. Applying a disparate treatment analysis, the AJ rejected
the agency's reason, i.e., that the MDO was investigating complainant's
charge. Further, she found that even if the agency had articulated
a legitimate, nondiscriminatory reason, the MDO's testimony was so
contradictory and inconsistent that his credibility was destroyed and that
he demonstrated discriminatory animus, and pretext was established.<2>
After a review of the record, including statements and arguments not
addressed herein, we find that the Administrative Judge's ultimate finding
of discrimination is supported by the record before us. In addition,
we find that the MDO's action constituted a violation of Title VII by
interfering with her right to pursue remedies for violations of equal
employment opportunity rules and regulations. 42 U.S.C. �2000e-3(a);
29 C.F.R. � 1614.101(b). See Binseel v. Department of the Army, EEOC
Request No. 05970584 (October 8, 1998); Yubuki v. Department of the Army,
EEOC Request No. 05920778 (June 4, 1993). An agency has a continuing
duty to promote the full realization of equal employment opportunity in
its policies and practices in every aspect of agency personnel matters.
29 C.F.R. � 1614.102. An agency must, among other things, insure
that its managers promote and enforce a vigorous equal employment
opportunity program and not interfere or discourage employees from
pursuing their rights. 29 C.F.R. � 1614.102(a)(5); Pruette v. USPS,
EEOC Appeal No. 01951567 (March 3, 1998). Here, the MDO's actions had
a potentially chilling effect on complainant and other employees in the
exercise of their rights. See Binseel v. Department of the Army, supra.
The agency, as directed, below, must take all actions necessary to insure
that the MDO and other agency managers act in accordance with the EEOC
regulations and, in particular, refrain from taking actions that may
discourage use of the EEO process.
REMEDY
The AJ ordered relief for the period from July 1996, through complainant's
removal from the supervision of the MDO. She directed that the agency
provide the MDO and his superiors, who were aware of his actions, eight
hours of EEO training courses; that the agency post a nondiscrimination
notice; that sick leave taken by complainant as a result of the
discrimination be restored; that complainant be afforded an opportunity
to identify her medical expenses and be awarded her medical expenses
attributable to the discrimination; and that complainant be awarded
$5,000 in nonpecuniary damages. In addition, she noted that complainant
had been transferred to another tour so that she was no longer subject
to the MDO's supervision.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the agency is directed
to comply with the Order, below.
ORDER
The agency is ordered to take the following remedial action:
A. If it has not already done so, within thirty (30) days of the date
this decision becomes final, the agency shall remove complainant from
the supervision of the MDO. The agency shall reassign the MDO, unless
complainant elects to transfer to another tour and/or facility.
B. The agency shall provide 8 hours of training to the MDO, the plant
manager, and any other managers that were aware of the MDO's actions,
specifically addressing his responsibilities with respect to the EEO
process and elimination of discrimination in the federal workplace
under the equal employment opportunity laws. The training shall place
special emphasis on prevention and elimination of discrimination based
on reprisal. Such training must take place within sixty (60) days of
the date this decision becomes final.
C. In connection with the Title VII violation, the agency shall reimburse
complainant for actual medical expenses for the period from July 1996,
through her removal from the supervision of the MDO that she can attribute
to the discrimination found herein. Within thirty days of the date this
decision is final, the agency shall contact complainant and explain how
to submit her claim and what, if any, supporting documents are necessary.
The agency shall also restore sick leave for the period from July 1996,
through her removal from the supervision of the MDO that she attests
was caused by the discrimination found herein. Within thirty days of
the date this decision is final, the agency shall contact complainant
and explain how to submit her claim for restoration of sick leave.
The agency shall reimburse complainant and restore sick leave to her or
otherwise respond to her within sixty days after submission of her claims.
D. The agency shall consider appropriate disciplinary action against the
MDO and report its decision. 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.
E. In connection with the Title VII violation, the agency shall award
complainant $5,000, in nonpecuniary compensatory damages,.
F. 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 all supporting documentation,
including evidence demonstrating that all corrective action has been
implemented and complainant's selection in Paragraph A. A copy shall
be sent to complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Lubbock, Texas, Processing and
Distribution Center 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)
(Title VII violation only)
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
_____08-14-02_____________
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 Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination
in Employment Act of 1967, 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 privilege of
employment.
The United States Postal Service Processing and Distribution Center,
Lubbock, Texas, supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under the law. It has remedied the employee affected
by the Commission's finding of discrimination based on sex, age, and
reprisal when an agency manager harassed her, by providing monetary and
other benefits, compensatory damages, transfer, and training for all
supervisory personnel. The United States Postal Service Processing
and Distribution Center, Lubbock, Texas, will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all federal equal employment laws and
will not subject employees to sex or age discrimination or take action
in reprisal for prior EEO activity.
The United States Postal Service Processing and Distribution Center,
Lubbock, Texas, 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 participated in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
1On November 22, 1996, the agency dismissed a second issue involving
use of a computer by unauthorized employees. The Commission affirmed
the agency's action. EEOC Request No. 05980410 (November 4, 1999),
affirming, EEOC Appeal No. 01971853 (February 13, 1998).
2The Commission notes that upon its request for the complaint record in
this matter, the agency was unable to produce transcripts of the hearing.
Not having the ability to review hearing testimony, we rely on the AJ's
credibility findings and evaluation of the witnesses.