0520130353
09-18-2013
Robert O. Davis, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Robert O. Davis, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520130353
Appeal No. 0120114141
Hearing No. 410-2010-0018IX
Agency No. 4H-300-0129-09
DENIAL
Complainant requested reconsideration of the decision in Robert O. Davis, Jr. v. U.S. Postal Service, EEOC Appeal No. 0120114141 (February 21, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
Complainant worked as a Laborer Custodian at the Agency's Post Office in La Grange, Georgia. In his formal complaint, Complainant alleged discrimination on the bases of race (African-American), color (black), sex (male), and in reprisal for prior EEO activity when:
1. on February 19, 20, and 21, 2009, he was not allowed to work overtime when relieving a Caucasian female custodian;
2. on March 2, 2009, he was not allowed to work the guaranteed eight hours and not paid for the entire day;
3. on an unspecified date, the workload was not evenly distributed;
4. in November 2008, his request was denied and he was charged Leave Without Pay instead.
An EEOC Administrative Judge held a hearing and found that the Agency discriminated against Complainant on the bases of race and sex regarding claim 2. The AJ awarded him $1,000.00 in compensatory damages and $82.18 plus interest as back pay.
On appeal, Complainant maintained that he had been subjected to a hostile work environment, and that the AJ should have increased the damages awarded and assigned him permanently to another facility.
In the previous appellate decision, the Commission affirmed the AJ's finding of discrimination regarding claim 2, and found that the AJ's award of $1,000.00 in compensatory damages was appropriate.
CONTENTIONS ON RECONSIDERATION
In his request for reconsideration, Complainant first asked for a 45-day extension to seek new counsel, and then asked for a 6-month extension because he underwent a serious medical operation. In addition, he briefly wrote: "Complainant intends to show that the Agency has demonstrated a pattern [sic] of discrimination dated back since 2001 which created and foster [sic] a hostile work environment by allowing continu[al] [sic] harassment. These hostile work environments not only reduce the Complainant ability to work and perform in a stress free environment."
The Commission granted Complainant an extension until June 24, 2013 to file a statement or brief due to his medical circumstances. But Complainant never did so.
ANALYSIS
To the extent that Complainant argues that the relevant claim should have been accepted as a hostile work environment claim dating back to 2001, and that the damages awarded should have included such discrimination, we find that the previous decision did not clearly err in upholding the AJ's award. In his formal EEO complaint, Complainant clearly indicated that the discriminatory events occurred in 2009.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120114141 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the previous decision's Order as modified below.
ORDER
The Agency, within one hundred and twenty days (120), shall take the following actions to the extent it has not already done so:
1. pay Complainant $1,000.00 in non-pecuniary compensatory damages;
2. pay Complainant $82.18 plus interest in back pay;
3. provide EEO training for the responsible management officials addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on race and sex discrimination; and
4. consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Agency shall 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. The Commission does not consider training to be disciplinary action.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
POSTING ORDER (G0610)
The Agency is ordered to post at its Post Office in La Grange, Georgia 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.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/18/13______________
Date
2
0520130353
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0520130353