0720100022
01-13-2011
Patricia Wiggins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Headquarters) Agency.
Patricia Wiggins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Headquarters)
Agency.
Appeal No. 0720100022
Hearing No. 530-2007-00281X
Agency No. 56-000-0001-07
DECISION
Following its January 4, 2010 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission rejects both of the Agency's requests and REVERSES the Agency's final order.
BACKGROUND
During the period at issue, Complainant worked as an EAS-16 Purchasing Coordinator at the Agency's Procurement & Administrative Service Center (PASC) in Bala Cynwyd, Pennsylvania. The following factual background is excerpted from the AJ's decision.
Complainant began her employment with the Agency in October 1980, as a PS-5 Distribution Clerk Machine Operator. She was reassigned to the position of EAS-9 Inspection Service Technician in September 1983; this position was part of the staff of the Inspector in Charge, Philadelphia Division. In March 1984, Complainant was promoted to the position of EAS-11, Operations Support Specialist, on the staff of the Regional Chief Inspector, Eastern Region, in Bala Cynwyd. In June 1987, she was promoted to the position of EAS-15 Investigative Program Analyst within the same staff.
Due to an Agency restructuring in 1993, Complainant was reassigned to the position of EAS-15 (saved grade) Inspection Service Operations Technician with the Inspection Service Operation Support Group in Bala Cynwyd. Complainant was promoted within the Inspection Service Operation Support Group to the position of EAS-16 Supervisor, Central Testing Unit (CTU) in May 1999.
In this position, Complainant performed both the ministerial and the more substantive "day to day work" required. For example, she not only stuffed envelopes, but also was involved with special/live testing wherein [she] had to develop and design graphics, consisting of envelopes, checks, inserts. Excel worksheets and correspondence letters. In addition, she assisted the Internal Crimes and Fraudulent Workers' Compensation teams with comprehensive and quality testing of USPS mail processing and distribution systems. She partnered with the Internal Crimes Division in designing a variety of tests for arrest that allowed inspectors to use the tests to establish probable cause for the arrest of an employee, and was familiar with all aspects of the testing operations. In this position within the CTU, Complainant supervised five employees. With one of her first level supervisors, she developed several tests and established the CTU Advisory Board. In addition, Complainant developed all of the presentations and spreadsheets and prepared booklets for distribution.
Complainant remained in this supervisory position until October 2004, when she was again reassigned, this time to the position of EAS-16 Purchasing Coordinator, within the Agency's Inspection Service PASC. Her duties in this position included processing and maintaining miscellaneous payments for the Service Centers, Field Divisions and Headquarters on a daily basis. In addition, she maintained the [PASC] Budget Tracking System, using the Quicken 2006 Deluxe program. Although she was assigned to the position of Purchasing Coordinator, Complainant continued to maintain the operation of the CTU.
In a September 9, 2006 letter, Complainant was provided with "Specific Notice of Reduction-in-Force" ("RIF"). The letter advised that a RIF was being conducted within the Bala Cynwyd Inspection Service PASC competitive area, due to a realignment of functions within the Inspection Service. Complainant was advised that she was to be released and terminated from her position of EAS-16 Purchasing Coordinator effective November 10, 2006. Several other EAS-16 Purchasing Coordinators were also in the process of a RIF, including all of the eventual selectees for the positions at issue herein.
In a September 25, 2006 e-mail, Complainant and the other employees at PASC who were subject to the RIF, were informed about two vacant Investigative Analyst positions in the Office of Inspector General's Integrity Testing Unit (ITU) in Lester, Pennsylvania. The Office of Inspector General (OIG) had decided to perform work that has some association with the Central Testing Unit, and consideration for the vacancies was limited to those individuals impacted by the RIF.1
The salary range for the Investigative Analyst position was between $38,175 and approximately $85,000. Complainant's EAS 16 salary was $63,398. The vacancy announcement advised as follows and in pertinent part: Applicants must perform a wide range of administrative duties in support of the OIG's internal mail theft mission to include: typing, word processing, telephone/reception services, scheduling meetings/conferences, filing/retrieving material and other duties as assigned.
Additionally, "DESIRABLE QUALIFICATIONS" for "the position included "prior experience supporting employee mail theft investigations and testing operations." Complainant's work in the CTU from 1993 to 2004 included these tasks.
Further, EVALUATION FACTORS were described as follows:
1. Knowledge of the concepts, principles and methods of investigative analysis to solve problems not susceptible to treatment by accepted methods; recommendations and decisions are characterized by breadth and importance.
2. Knowledge of various software applications, including Microsoft Word, Excel, Access and PowerPoint.
3. Skill in resolving unprecedented, broad, difficult or complex problems.
4. Ability to query various databases to obtain and download information for analysis.
5. Ability to communicate, both orally and in writing, to establish and maintain effective working relationships.
On September 29, 2006, Complainant timely submitted her application for the ITU position, which included her PS Form 991, her performance rating as of January 4, 2006, and related narratives. Also on September 29, 2006, an HQ Transition Coordinator advised the Agency's OIG Office of Human Resources of the instant RIF in process. Complainant was identified as an applicant for the Investigative Analyst position and eligible for favorable consideration.
Although a Special Agent in Charge was the selecting official (SO) for the position, the selectees would be assigned to an Assistant Special Agent in Charge (ASAC1) who supervised the internal mail theft team. The selectees would be supporting the special agents who worked in that unit. In an October 11, 2006 memorandum, the Agency's Human Resources Analyst and the Agency's Manager, for Staffing and Classification provided the SO with a list of applicants who were in the RIF at that time. The SO reviewed all of the applications and since the ITU was going to report to ASAC1, he also reviewed the applications. In addition, ASAC1 asked the special agents (who were former inspectors in the Postal Inspection service) whether they had worked with any of the individuals on the list, if they were hard workers and whom they thought would be good in the position. Those special agents were: SA1 and SA2. A third special agent, SA3, only spoke with the SO about the candidates. Neither the SO or ASAC1 knew any of the individuals on the list, and they did not conduct any interviews for the position because of time constraints.
Although she did not know Complainant, the SO decided against hiring Complainant because, while she thought Complainant was competent to do the job, she was concerned that it would not have been "the best fit" based on: (1) the assumption that it would be difficult for Complainant to go from a supervisory position to a non-supervisory position where she would have to take supervision from a number of different people; and (2) because she found Complainant to be overqualified for the position.
Prior to forwarding her initial selections to Human Resources, and after hearing that one of Complainant's subordinates, a favored candidate (Applicant One), had taken another job, the SO called Applicant One and asked her who she would recommend for the second vacancy, Applicant Two or Applicant Three. Applicant One leaned slightly in favor of Applicant Two in her recommendation. The SO claimed she did not mention to Applicant One that Complainant was a possible candidate because none of the agents at that point had said that they had worked with her. In fact, SA3 had worked with Complainant in the past. Nevertheless, the SO had already decided that Complainant would not be a "good fit."
In an October 25, 2006 email to the HR representatives, the SO advised that she had selected Applicant One and Applicant Two for the Investigative Analyst positions. The SO also formally advised that Applicant One had recently accepted a position with the Veterans Administration and did not know whether this would affect her selection. The SO advised that the selections were based, in part, by the recommendations of the three Special Agents, who had advised her or ASAC1, at least with regard to Applicant One, that "she was a hard worker and they thought she would do a good job." In addition, the SO claims she selected Applicant Two as the other selectee based on a recommendation from another ASAC (ASAC2).
In the meantime, Complainant's supervisor (S1), had also recommended to ASAC2 four individuals for the position including Complainant, CoWorker and Applicant Two. However, although she recommended all four individuals, S1 communicated to ASAC2 that she felt Complainant had greater skills and abilities than others. Further, she did not recommend Applicant One or Applicant Three as she did not feel they had the knowledge, skills or ability to quickly and easily start up a new unit, especially as their skill was not in Integrity Testing.
In an October 27, 2006 email, the HQ Transition Coordinator advised Complainant that the two selectees for the instant position were Applicant One and Applicant Two. However, because Applicant One had accepted the other position, she was no longer considered an affected employee and was no longer qualified for the position. The SO having already decided that Complainant was not "in the running for the position," claimed she selected Applicant Three, in conjunction with ASAC1, because she was highly recommended by former inspectors who worked with her. However, none of the Special Agents (former inspectors) whose recommendations for selection were sought, mentioned their knowledge of Applicant Three's qualifications. To the contrary. SA1 had only worked with Applicant One; SA2 had also only worked Applicant One although she knew both Applicants Two and Three; and SA3 had only worked extensively with Applicant One, although she also knew Complainant.
Thereafter, in a November 2, 2006 email, HQ Transition Coordinator advised Complainant, as well as two other applicants that Applicant Three was selected for the second OIG ITU position. Both selectees were hired at the EAS-23 level, which was a higher level than their prior positions as EAS-16 Purchasing Coordinators. The PS Form 50s for both selectees indicated that the position was not a promotion as the EAS level change was due to the OIG Pay Banding System Realignment, but notably, the base salary, as well as a comment presumably about the salary, is redacted from the forms of record.
On November 9, 2006, Complainant submitted a copy of her PS Form 991 to a Human Resources Manager in the Agency's South Jersey District Office, with a request for a lateral assignment. This individual informed Complainant that the EAS-23 position was a promotion. On the following day and after 26 years of service, Complainant was separated from her employment with the Agency as an EAS-16 Purchasing Coordinator. On December 9, 2006, Complainant was assigned to an EAS-12 Secretary position with the South Jersey Customer Service District in Bellmawr, New Jersey. She was hired with saved grade for two years and saved salary indefinitely, due to the Agency's 2006 Inspection Service National Realignment.
On January 29, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and color (black) when on October 27, 2006, she learned she had not been selected for one of two Investigative Analyst positions in the OIG's ITU in Lester, Pennsylvania, and then, on November 2, 2006, she learned that another Caucasian applicant was selected for the same position when one of the previously selected applicants was declared ineligible. Complainant had originally alleged age discrimination but withdrew this basis before the hearing.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing and the AJ held a hearing on February 2, 2009, and issued a decision on November 18, 2009.
AJ'S DECISION
In her decision, the AJ initially found that Complainant had established a prima facie case of race and color discrimination because she was qualified for the position and was not selected, while three individuals outside of her protected classes were selected. The Agency's explanations for not selecting Complainant, as articulated by the SO, were that (1) she was not considered for the position because she had been in a supervisory position for several years and there was concern that she would not readily make a transition into a non-supervisory position; and (2) she was overqualified. The AJ found the SO's testimony in this regard to be unworthy of belief, and she ultimately concluded that Complainant proved it was a pretext for race and color discrimination.
In reaching this conclusion, the AJ found that the hiring process was entirely subjective and relied almost solely upon "word of mouth" recommendations, including one from Complainant's subordinate. The AJ found that the absence of any semblance of an objective selection panel was sufficiently suspicious to cast doubt on SO's concern that Complainant would not be able to successfully assume a non-supervisory position. The AJ also found this assumption undermined by the credible testimony of S1 as well as the individual (S2) who replaced S1. The AJ found that the Agency offered no rebuttal to S1's assessment that Complainant had greater skills and abilities than the other applicants. The AJ also noted how very different S2's assessment of Complainant's skills and work ethic was compared to her assessment of the selectees. After S1 retired, S2 came on to close down the Bala Cynwyd Service Center S2 supervised Complainant, CoWorker, Applicants Two and Three (and Applicant Four). S2 testified that:
... with the transitioning, the two individuals that stand out in my mind were Complainant and CoWorker, but Complainant in particular was a really hard worker. She was very energetic. She took on the challenge of helping me with the furniture, speaking to different folks within the postal community that wanted to take the furniture we were disposing of. I recall her coming in early on many occasions, like 6 a.m., to meet with these people ... and honestly, I was amazed at her work ethic considering what she was going through, and I will say the other folks there outside of her and CoWorker were pretty negative. They were unhappy. They were not really, you know, motivated to help out at all.
Hearing Transcript at 20. S2 further testified that:
I used to do compliance reviews and I can recall inspectors telling me what a great job Complainant had done at the Central Testing Unit and especially considering the limited budget that she was on. They knew she was very stretched for buying the right supplies and getting the right things within that unit to do what she needed to do but she did an excellent job considering her limited resources, and continued to identify thieves within the Postal Service.
And in response to the question, "So your information is, she was a really good manager, correct?", S2 replied:
She was a really good worker. I wouldn't just say manager. I think to get to that level you have to be a really good employee. You don't get promoted into a supervisory position without having done a really good job in your previous employment jobs.
AJ Decision at 20; Hearing Transcript at 37.
The AJ found that the Agency failed to sufficiently refute this testimony and found that it in fact supported the fact that Complainant had the sound working habits and proven reliability which SO enthusiastically claimed was required rather than suggest that Complainant would struggle to adjust to a nonsupervisory position.
The AJ also found SO's own admission that she found Complainant to be overqualified for the position inconsistent with the vacancy announcement which suggested that the ITU's workload would expand and require someone who had prior experience supporting mail theft investigations and testing operations, as well as the evaluation factors. Complainant had this experience. Further as it turned out that the positions at issue were EAS 23 level positions with salary potential much greater than that of the EAS 16 purchasing agents. Thus, the new jobs were clearly a promotion.
Having found the explanations unworthy of belief, the AJ turned to the question of pretext. The AJ found the record silent as to the abilities of Applicant Three, noting that none of the Special Agents who allegedly recommended her had ever worked with her. The AJ also found that the record could only be characterized to support a finding that Applicant Two was minimally qualified for the position. The AJ found the fact that SO described Complainant as "overqualified" to be compelling evidence that Complainant's qualifications were superior to those of the selectees.
Finally, the AJ considered testimony about the racial environment at Bala Cynwyd. She found compelling the testimony from a Postal Inspector who had worked at Bala Cynwyd since 2003:
In Bala Cynwyd, it was always said that basically the procurement was where all the black employees worked and on the Inspection Service side for years I was the only black inspector...
Hearing Transcript 110. Further, when asked about her observations of how the inspectors interacted with Complainant, the Postal Inspector testified as follows:
They bypassed her and they would basically go to Applicant One or CoWorker when they wanted -- they actually would just talk to them and just bypass Complainant altogether...To me, they bypassed her because of her color. I mean, even when I would ask questions- like on one occasion I needed to find out how to get an undercover bank account and send out checks for a case I was working ... my supervisor said well, here, I'll take you down the hall and you can talk to Applicant One, and Applicant One didn't have the answer and so she was like go see my supervisor, who was Complainant, which is technically the way it should have [gone] in the first place. You go to the person's supervisor who has the department....
Hearing Transcript at 110, 112.
The Postal Inspector testified that after S1 (who was also African American) left in September 2006 and S2 came:
you just saw a different relationship with S2. No one ever really dealt with S1 ... They would just not deal with her. It was like she was invisible to the office ... but when S2 came in, it was everybody was going to her, sitting down with her, talking to her, asking her questions, and it was like now you see a whole different atmosphere in the office ... it was just this underlying thing.
Hearing Transcript at 117, 118.
The AJ found that S1 confirmed in her hearing testimony that the inspectors (all non-African American, non-black) would bypass Complainant and go straight to Applicant One, even after she and Complainant sent emails requiring that inspectors first go to her or Complainant with questions. These inspectors became the Special Agents whose recommendations were sought by SO and ASAC1.
S1 added that she experienced similar behavior while in the Bala Cynwyd office. For example, in response to the question of whether she felt the inspectors interacted differently with the black personnel as opposed to the white personnel. S1 testified as follows:
Well, I can say from my experiences, because my experiences were generally with the PASC - they [the white inspectors] never really talked to me ... There were a few that talked to me but for the majority of the time they didn't interact with me ... if they talked to me it was well, you know, it was only because they had to talk to me about something but generally we didn't interact.
Because of the climate ... I can speak to the PASC because that's where I worked - there was always an air at that location that, you know, of some racial intolerance, so can I say with 100 percent certainty that's why, no, but I can say that's what I felt....
Hearing Transcript at 78, 99.
The AJ found that this testimony was credible and that it combined with Complainant's superior qualifications to support the conclusion that the SO's explanation for not selecting Complainant was a pretext for race and color discrimination.
Turning to the equitable relief due, the AJ ordered the Agency to promote Complainant to the position at issue; to pay back pay; to provide training to the SO and ASAC1 on their obligations under Title VII and to post a notice. The AJ awarded Complainant $32,000 in non- pecuniary damages for humiliation and embarrassment of having to assume a position four levels below the pay grade she had spent twenty-six years attaining and maintaining. She also considered that Complainant suffered from severe fear of bridges and that the commute back and forth to New Jersey required her to cross a bridge which created stress that took the form of severe headaches. The AJ noted that while Complainant testified that she felt worthless when she had to take the downgrade, she explained why she did not obtain any psychological or psychiatric counseling:
Well, other than seeing my medical doctor for my annual visit, I did not seek any medical attention because my faith in God kept me going, as my faith has always helped me. This is the way I was raised... I keep a lot of things internalized. I have been taught to have strength.
Damages Transcript at 29.
The AJ also awarded $1,783 in non-pecuniary damages for reimbursement for bridge toll fare.
With regard to attorney's fees, the AJ awarded $77,099 in attorney's fees and costs as requested in the fee petition. In rejecting the Agency's argument that the award should be reduced to approximately $31,014, the AJ found that the customary hourly rate should be the billing rate in effect at the time the petition is submitted. She also found that the hours expended before counsel notified the Agency of representation were reasonable; that any work performed with regard to the withdrawn age claim was not "fractionable or unrelated" to the Title VII claims and that the Agency's objection to certain copying costs was simply "petty."
CONTENTIONS ON APPEAL
On January 24, 2010, the Agency issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. In its brief in support of this appeal, the Agency argues that Complainant failed to establish a prima facie case of discrimination because SO did not know Complainant's race or her color. The Agency also argues that the finding of pretext is the consequence of the AJ's substituting her judgment for that of the SO and punishing the Agency for its selection procedures. Finally, the Agency argues that the AJ "erred in amending the complaint during the hearing to consider claims of discrimination related to Complainant's treatment while employed with the Postal Inspection Service."
In the alternative, the Agency requests that the non-pecuniary damage award be reduced because Complainant's suffering was not corroborated by any medical or other evidence and is excessive. The Agency also renews its objections to the petition for fees.
STANDARD OF REVIEW
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Upon review of the record, we find that Complainant established a prima facie case of race and color discrimination because she presented facts that if left unexplained, reasonably gave rise to an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Complainant, an African American, was a long time Agency employee and qualified for the Investigative Analyst position. She was not selected twice, each time in favor of her White subordinates. Selections were made by word of mouth reference in a work environment where blacks felt invisible and undermined. This evidence is sufficient to support an inference of discrimination and establish a prima facie case.
The AJ found SO's testimony regarding why Complainant was not selected to be unworthy of belief because there was no evidence to support SO's assumption that Complainant would be unable to transition to a non-supervisory position. To the contrary, S2's testimony regarding Complainant's work ethic and attitude established that Complainant had professional flexibility and maturity. The AJ credited this testimony, and there is no objective evidence to undermine it. Similarly, there is no evidence, documentary or testimonial, to support SO's assumption that Complainant was overqualified for the position, which was in fact a promotion.
Substantial evidence also supports the AJ's conclusion that Complainant's qualifications for the job were superior to those of the selectees. The AJ credited S1's testimony in this regard, and the Agency failed to rebut it.
We reject the Agency's effort to suggest that the AJ amended the complaint. The AJ took testimony from Complainant, S1 and a Postal Inspector concerning the racial environment in the Postal Inspection Service where they and the other applicants worked. As this selection was determined by word of mouth references from Special Agents (former inspectors) who knew the applicants because they worked with them in the Postal Inspection Service, evidence about the racial environment and how blacks were treated was highly relevant to this claim of non selection. The AJ did not make a finding that Complainant was harassed, nor did she award relief for harassment. She found that the environment was sufficiently charged with racial disharmony. This is the essence of background evidence.
Contrary to the Agency's argument on appeal, the AJ did not make a finding of discrimination based on the Agency's choice of selection procedures. The Agency claims that there were serious time constraints regarding filling the positions and that the acrimonious relationship between the Postal Inspection Service and the OIG created an atmosphere of distrust that influenced the SO's approach to filling the positions. The Agency argues in essence that these are the real reasons why Complainant was not selected. However, we agree with the AJ's conclusion that Complainant proved pretext because the explanation for her non selection was not believable, her qualifications for the position were superior to those of the selectees and the selections were generally made by word of mouth references in an environment where Blacks felt invisible. We are not persuaded by the Agency's arguments that a rush to hire and S1's ignorance of Complainant's race or color seals it from liability under the circumstances of this complaint.
Turning to the relief, we discern no basis to disturb the AJ's findings. The fact that Complainant's fear of travelling across bridges pre-dated her non-selection has nothing to do with the fact that had the Agency not discriminated against her, she would not have had to travel across the Benjamin Franklin Bridge to her secretarial job in New Jersey everyday. It has also been the Commission's long standing position that medical evidence is not required to establish entitlement to relief for pain and suffering. The AJ credited Complainant's testimony, and the Agency provides no evidence to suggest that it lacks credibility. Similarly, for the well analyzed explanations in the AJ's decision, we also reject the Agency's challenge to the fee petition. Complainant's counsel has earned his fees for his successful prosecution of this complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final order and REMAND this matter to the Agency to comply with the ORDERS below.
ORDER
The Agency is hereby ORDERED to take the following remedial action:
1. The Agency shall promote Complainant, by reassignment, to the position of OIG Investigative Analyst 1801 in the ITU, or a substantially equivalent position (which does not require Complainant to travel across a bridge in her daily commute), retroactive to the date she was apprised of her non-selection (November 8, 2006), no later than forty five (45) calendar days after the date this decision becomes final.
2. The Agency shall determine the appropriate amount of back pay (with interest, if applicable) and other benefits due Complainant, pursuant to 29 C.F.R. Section 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Complainant 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 the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant 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 referenced in the statement entitled "Implementation of the Commission's Decision;"
3. The Agency shall provide eight (8) hours of in person training to SO and ASAC1 addressing their responsibilities under Title VII with emphasis on hiring.
4. The agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the compliance officer. 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. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s).
5. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall pay non-pecuniary compensatory damages to Complainant in the amount of $32,000.00, and pecuniary damages to Complainant in the amount of $1,783.00; and
6. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall pay attorney's fees and costs in the amount of $77,099.00.
POSTING ORDER (G0610)
The Agency is ordered to post in the Office of Inspector General's Integrity Testing Unit in Lester, Pennsylvania 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
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Carlton M. Hadden, Director
Office of Federal Operations
January 13, 2011
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Date
1 The OIG was formed approximately 10 years ago, and was designed to investigate fraud, waste and abuse in the Postal Service; prior to its formation, the Postal Inspection Service served the same purpose.
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0720100022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013