Michele A. Howard, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A45263_r (E.E.O.C. Nov. 29, 2004)

01A45263_r

11-29-2004

Michele A. Howard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michele A. Howard v. United States Postal Service

01A45263

November 29, 2004

.

Michele A. Howard,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45263

Agency No. 4H-310-0083-03

Hearing No. 110-2004-0200X

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning her equal employment opportunity (EEO) complaint of 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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �

1614.405.

The record reveals that on October 4, 2000, a Maintenance Support Clerk

position was announced as vacant and employees of the agency's Columbus,

Georgia Post Office were invited to apply. Complainant applied for the

position, and was awarded the position of Maintenance Support Clerk

on December 15, 2000. On January 18, 2001, an unsuccessful candidate

(hereinafter referred to as �candidate�), filed a formal EEO complaint

alleging that she was discriminated against on the basis of race was

she was not selected for the Maintenance Support Clerk position.

On November 4, 2002, an EEOC Administrative Judge (AJ) found that the

agency discriminated against the candidate on the basis of her race when

it did not select her for the position of Maintenance Support Clerk.

On December 11, 2002, after hearing evidence on the issue of damages,

the AJ ordered the agency to place the candidate in the position of

Maintenance Support Clerk, PS-5, at its Columbus, Georgia Post Office,

retroactive to the date of the contested selection, together with

back pay and benefits. On April 22, 2003, the agency issued a final

order implementing the AJ's removal of complainant and placement of

candidate in the subject position but rejected the AJ's decision awarding

$25,000.00 in compensatory damages. Following its April 22, 2003 final

order implementing the AJ's decision, the agency filed an appeal with

the Commission requesting that the Commission affirm its rejection of

the AJ's decision award of $25,000.00 in compensatory damages to the

candidate. On April 29, 2004, the Commission concluded that the AJ's

award of compensatory damages was supported by substantial evidence of the

record and reversed the agency's final order. On remand, the agency was

ordered to place the candidate in the position of Maintenance Support

Clerk, PS-5, at its Columbus, Georgia Post Office, retroactive to the

date of the contested selection, together with back pay and benefits

within thirty (30) days of the date on which the decision becomes final.

Riles v. United States Postal Service, EEOC Appeal No. 07A30093 (April

29, 2004).

Complainant sought EEO counseling, and subsequently filed a formal

complaint on June 28, 2003. Therein, complainant claimed that she was

the victim of unlawful employment discrimination on the bases of race,

color, national origin, age and in reprisal for prior EEO activity.

Complainant's complaint was comprised of the following claim:

on May 7, 2003, complainant was reassigned from her Maintenance Support

Clerk position to an unassigned regular mail processing clerk because

of an AJ's decision discussed above.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The agency thereafter filed a Motion to Dismiss.

In its motion, the agency requested that the AJ issue a decision without a

hearing, dismissing complainant's complaint for failure to state a claim.

The agency argued that management was ordered to remove complainant from

her Maintenance Support Clerk position because an AJ found that she was

not qualified for the subject position she was awarded in December 2000.

The agency argued that management was ordered to place the candidate into

the subject position, that had previously been occupied by complainant.

Furthermore, the agency argued that because complainant failed to show

that her reassignment was based on an impermissible discriminatory

purview, complainant's complaint must be dismissed for failure to state

a claim.

On June 24, 2004, the AJ dismissed complainant's complaint for failure

to state a claim for which relief could be granted. Specifically, the

AJ stated that complainant was not aggrieved as she failed to allege an

adverse action for which she suffered harm.

The agency implemented the AJ's decision in a final action dated July

1, 2004. It is this decision that is the subject of the instant appeal.

In the instant case, we find that the present complaint was properly

dismissed. The record reflects that due to the agency's discriminatory

actions, complainant enjoyed the specific employment benefits that would

have been granted to the candidate, but for the agency's discrimination.

See generally Myers v. USPS, EEOC Petition No. 04950028 (May 2,

1996). See also Walters v. City of Atlanta, 803 F.2d 1135, 1149 (11th

Cir. 1986) (not to allow the bumping of a direct beneficiary of repeated

discrimination by the direct victim of the same acts of discrimination

would penalize the plaintiff who won his suit but lost the race to fill

the position that she was unlawfully denied). Complainant's reassignment

was the proper remedial relief for the finding of discrimination in

the prior EEO complaint and, therefore, there is no remedial relief

available for the present complainant in this case. Accordingly, the

agency's final action implementing the AJ's dismissal is AFFIRMED.

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).

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

November 29, 2004

__________________

Date