0120072710
09-21-2007
Ronald Shannon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Ronald Shannon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120072710
Hearing No. 310-2005-00126X
Agency No. 4G-752-0184-04
DECISION
On May 22, 2007, complainant filed an appeal from the agency's May 9,
2007, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
On March 17, 2004, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of disability (back injury)
and in reprisal for prior protected EEO activity [arising under the
Rehabilitation Act], when:
1. he was involuntarily reassigned from the Euless Post Office to the
Frisco, Texas Post Office, effective January 10, 2004;
2. he was denied reasonable accommodation in his Frisco duties;
3. the processing of his disability retirement application was delayed
since his reassignment; and
4. he has been subjected to a hostile work environment due to having to
continuously working outside of his medical restrictions, causing him to
leave work on many days, and causing his physical condition to further
deteriorate.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing and issued a decision on
May 9, 2006, finding partially in complainant's favor.
Specifically, the AJ addressed issues (2) and (4) jointly, finding that
the act of assigning complainant duties at the "Dutch doors" during
the period of January 14, 2004 to March 21, 2004, violated his lifting
restriction. The AJ further found that management had made a good faith
effort to interact with complainant and achieve an accommodation and that
therefore, complainant was not entitled to compensatory damages. The AJ
found no discrimination as to all remaining issues. In a separate Order
on damages, the AJ found that complainant was entitled to $3,922.50 as
"back pay", that is, compensation for the sick leave and annual leave
that he had to take during the relevant period, as well as $23,485.25
in attorney's fees and $33.23 in costs. The AJ also ordered the agency
to train the supervisors involved in the liability finding regarding the
reasonable accommodation process under the Rehabilitation Act. The agency
subsequently issued a final order wholly adopting the AJ's finding.
On appeal, complainant, through counsel, states that he does not appeal
the findings of no discrimination as to issues (1) and (3), and that he
does not appeal the decision on attorney's fees and costs. Complainant
disagrees however, concerning issues (2) and (4) that liability should
be limited to the time preceding March 21, 2004, and that compensatory
damages were not available because management acted in good faith.
Complainant also contends that more back pay (compensation for leave
used) is due based on his argument that the period of liability should
be expanded. In response, the agency requests that we affirm the FAD.
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, � VI.B. (November 9,
1999). In this case, we discern no basis upon which to modify the AJ's
decision.
Based on a thorough review of the record and the contentions on appeal,
we discern no basis to disturb the findings of the Administrative Judge.
We AFFIRM the agency's final order, and we further direct the agency to
comply with the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final and to
the extent it has not already done so, the agency shall:
(1) Pay complainant $3,922.50 as compensation for the sick leave and
annual leave that he had to take during the relevant period;
(2) Pay $23,485.25 in attorney's fees and $33.23 in costs; and
(3) Provide EEO training to the relevant individuals regarding the
reasonable accommodation process under the Rehabilitation Act.
POSTING ORDER (G0900)
The agency is ordered to post at its Frisco, Texas Post Office 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)
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
September 21, 2007
__________________
Date
2
0120072710
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036