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