07A30135
03-19-2000
Samuel S. Haver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Samuel S. Haver v. United States Postal Service
07A30135
March 19, 20004
.
Samuel S. Haver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 07A30135
Agency No. 6-U-000-0003-02
Hearing No. 130-A3-8074X
DECISION
Following its September 12, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.<1>
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of his sex. The agency also rejected
the relief ordered by the AJ, as well as compensatory damages. For the
following reasons, the Commission REVERSES the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether the EEOC Administrative Judge
(AJ) correctly found that: the agency discriminated against complainant
based on his sex, when on or about March 18, 2002, he was not selected
for the position of Manager, Business Service Network.
BACKGROUND
In April, 1998, complainant was employed by the agency as a Mailpiece
Design Analyst, EAS-15, in the Mississippi District at the agency's
General Mail facility located in Jackson, Mississippi. On or about
March 9, 1998, the agency issued a vacancy announcement for the position
of Manager, Postal Business Center, EAS-20, at the same location.
Complainant applied for the position and was notified of his non-selection
by letter, dated April 27, 1998. On or about February 25, 2002,
the agency issued a vacancy announcement for the position of Manager,
Business Service Network Operations, EAS-20. Complainant applied for
the position but was not selected, and a female employee was selected.
In March, 2002, complainant, was employed by the agency as a Senior
Customer Services Representative, EAS-16. On or about March 18, 2002,
complainant initiated contact with an EEO counselor concerning his
non-selections, including the non-selection that occurred in April, 1998.
On May 22, 2002, complainant filed an EEO complaint alleging that the
agency discriminated against him on the basis of sex when: (1) on or
about March 18, 2002, he was not selected for the position of Manager,
Business Service Network; and (2) in April, 1998, he was not selected
for the position of Manager, Postal Business Center.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ issued a decision finding that complainant
did not make EEO counselor contact within forty-five days of his April,
1998 non-selection. The AJ found that complainant waited for almost four
years before making his initial EEO counselor contact. The AJ concluded
that complainant has provided no evidence to support an equitable tolling
of the filing period. The AJ determined that complainant's informal
EEO contact was untimely on this issue and dismissed this portion of
complainant's EEO complaint.
In his decision, the AJ also found complainant was discriminated against
on the basis of his sex, regarding the March 18, 2002 non-selection.
Specifically, the AJ concluded that the agency's articulated reason for
complainant's non-selection in March, 2002, was unworthy of belief.
In so finding, the AJ determined that the agency articulated as its
legitimate nondiscriminatory reason that the selectee was chosen pursuant
to the agency's RIF-avoidance procedures. However, the AJ found that
the selecting official testified that the selectee was chosen through
the competitive selection process and that the RIF-avoidance process
was not used. As such, the AJ concluded that the agency's explanation
for the March 2002 selection was unworthy of belief and a pretext for
sex discrimination.
Based on the finding of discrimination, the AJ, in his final decision
dated July 29, 2003, awarded $10,000.00 in non-pecuniary compensatory
damages. Specifically, the AJ found that complainant suffered emotional
harm as a direct result of his non-selection. The AJ also found that
complainant was entitled to placement in the Manager, Business Service
Network position, retroactive to the date the selectee was placed in
that position, along with retroactive rights and benefits that would have
accrued but for the discrimination, including back pay, with interest.
The agency's final order affirmed the AJ's dismissal of complainant's
claim (2) for untimely EEO contact, but rejected the AJ's finding of
discrimination regarding claim (1). On appeal, the agency contends, among
other things, that at the time of the March 2002 selection for Manager
of Business Service Network Operations, complainant was an EAS-16, and
the selectee an EAS-23, and that complainant was requesting promotion,
and the selectee a downgrade. The agency also contends that complainant
was not in danger of losing his job as a result of the RIF; however, the
selectee was going to lose her job. The agency concluded that these facts
support a finding that the selection in March 2002 was not motivated by
sex discrimination. The agency also contends that the AJ incorrectly
concluded that because the 2002 selection was competitive, that RIF
avoidance procedures were not followed in the selection. Specifically,
the agency argues that just because the selecting official testified that
the selectee was selected through the competitive selection process does
not mean that RIF-avoidance procedures were not also used. The agency
further contends that the amount of compensatory damages awarded by the
AJ is excessive. The agency contends that complainant testified to no
physical problems except for sleeplessness.
On October 16, 2003, complainant responded to the agency's appeal.
In his motion, complainant also challenged the AJ's conclusion that
he did not make timely contact with an EEO counselor, regarding his
non-selection in 1998. Specifically, complainant contends that he
did not have a reasonable suspicion of discrimination in March 2002,
when a manager official told him that he was the first choice in 1998,
for the position. Complainant also requested the Commission to reverse
the agency's order and affirm the AJ's finding of sex discrimination
regarding his non-selection in March 2002.
ANALYSIS AND FINDINGS
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.
Untimely Contact with EEO Counselor
EEOC Regulation 29 C.F.R. � 1614.105 (a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Commission has
adopted a �reasonable suspicion� standard (as opposed to a �supportive
facts� standard) to determine when the forty-five (45) day limitation
period is triggered. See Howard v. Department of the Navy, EEOC Request
no. 05970852 (February 11, 1999). Thus, the time limitation is not
triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The Commission finds that complainant should have had a reasonable
suspicion of discrimination when on April 27, 1998 he was notified of
his non-selection for the position and was aware that the selectee was
a female. The record reveals that complainant contacted an EEO counselor
on or about March 20, 2002, four years later. Accordingly, we agree with
the AJ that complainant has provided no evidence to support an equitable
tolling of the filling period. Therefore, we conclude that the agency's
dismissal of claim (2), for untimely EEO Counselor contact, was proper.
Disparate Treatment Claim
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has articulated such reason,
the question becomes whether the proffered explanation was the true
reason for the agency's action, or merely a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
In order to establish a prima facie case of discrimination based on sex,
complainant must show that he is a member of a protected group and that
he was subjected to an adverse employment action. Packard v. Department
of Health & Human Services, EEOC Appeal Nos. 01985494, 01985495 ( March
22, 2001). He must also show either that he was treated less favorably
than other similarly situated employees outside of his protected group,
id., or must present other, non- comparative evidence which supports
an inference that the agency was motivated by unlawful discrimination.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312
(1996). In the instant case, it is not disputed that complainant applied
for the position of Manager, Business Service Network, and although
complainant was qualified for the position, he was not selected.
The record reflects that the agency selected a female individual for
this position. Consequently, we find that complainant established a
prima facie case of sex discrimination.
The burden of production now shifts to the agency to rebut the presumption
by articulating a legitimate, nondiscriminatory reason for its actions.
While the agency's burden of production is not onerous, it must
nevertheless provide a specific, clear and individualized explanation
for the treatment accorded complainant.
We find that the AJ's conclusion that the agency's articulated
nondiscriminatory reasons are unworthy of belief, is supported by
substantial evidence in the record. The AJ' factual finding that the
agency's reasons are unworthy of belief will only be overturned on
appeal if the agency can show that the factual findings are against the
substantial weight of the evidence.<2> The agency has failed to meet
this burden. In so finding, the record indicates that the agency argues
that the AJ incorrectly concluded that because the 2002 selection was
competitive, that RIF avoidance procedures were not also followed in the
selection process. We find that the record did not support the agency's
argument. Complainant's prima facie case, combined with the AJ's finding
that the agency's asserted justification is unworthy of belief, permit
the Commission to conclude that the agency's unlawfully discriminated
against complainant. The Supreme Court has held that a plaintiff may
show pretext by establishing a prima facie case and sufficient evidence
that the defendant's explanation is unworthy of credence. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000); Ford
v. Department of the Army, EEOC Request No. 05980506 (December 6, 2001).
Furthermore, we note that an AJ's credibility determinations are entitled
to deference due to the judge's first-hand knowledge through personal
observation of the demeanor and conduct of the witness at the hearing.
Grant v. Department of the Treasury, EEOC Appeal No. 01985972 (August
2, 2001). We therefore discern no basis to disturb the AJ's decision
in this regard.
Compensatory damages
When discrimination is found, the agency must provide complainant with a
remedy that constitutes full, make-whole relief to restore complainant
as nearly as possible to the position he would have occupied absent
the discrimination. See Franks v. Bowman Transportation Co., 424
U.S. 747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19
(1975). Section 102 (a) of the Civil Rights Act of 1991 (the CRA 1991),
Stat. 1071, Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes
an award of compensatory damages as part of the �make whole� relief
for intentional discrimination. Compensatory damages do not include
back pay, interest on back pay, or any other type of equitable relief.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for an
employer with more than 500 employees, such as the agency, is $300,000.
42 U.S.C. � 1981a (b)(3)(D).
Compensatory damages, however, are further limited to the amount
necessary to compensate an injured party for actual harm caused by the
agency's discriminatory action, even if the harm is intangible. Damiano
v. U.S. Postal Service, EEOC Request No. 05980311 (February 26, 1999).
Compensatory damages should consider the extent, nature, and severity
of the harm and the length of time the injured party endured the harm.
Id.; Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),
at 11-12, 14.
Pecuniary Compensatory Damages
Complainant has not claimed pecuniary damages for expenses incurred as
a result of the discriminatory conduct. Therefore, we agree with the
AJ that this failure precludes complainant an award of pecuniary damages.
Non-Pecuniary Compensatory Damages
There is no precise formula for determining the amount of damages for
nonpecuniary losses, except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,
1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995). We note that for a proper award of nonpecuniary damages,
the amount of the award should not be "monstrously" excessive standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
The record reveals that complainant suffered emotional distress, he
experienced sleeplessness and hostility as a result of the agency's
discriminatory conduct. Complainant testified that because of the
non-selection in March 2002, he felt�like his world collapsed.� The
Commission finds that the AJ's award of $10,000.00 in non-pecuniary
damages was appropriate. This amount takes into account the severity of
the harm suffered, and is consistent with prior Commission precedent.
See Mullins v. United States Postal Service, EEOC Appeal No. 01954362
(May 22, 1997) ($10,0000.00 award where complainant's depression and
other emotional and mental disorders were direct result of sexual
harassment and reprisal); Jones v. Department of Defense, EEOC Appeal
No. 01973551 (April 14, 2000) ($9,000.00 award based on complainant's
statements of the interference with family and marital relations, anxiety,
sleeplessness and exhaustion resulting from the agency's discrimination);
Guerra v. United States Postal Service, EEOC Appeal No. 01982149 (July 19,
2000) ($10,000.00 award for physical and emotional harm in the form of
exacerbation of physical impairments, and stress caused by a supervisor's
inappropriate sexual behavior, solicitation and continued harassment).
Therefore, we conclude that the AJ appropriate awarded complainant
$10,000.00, because it is adequate, and not excessive, to compensate
complainant.
CONCLUSION
Based on the foregoing, the Commission finds that the AJ's finding of
fact are supported by substantial evidence. The Commission also finds
that the AJ's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. After a careful review of
the record, including the agency's arguments on appeal, complainant's
response, and evidence not specifically discussed in this decision,
the Commission REVERSES the agency's final order which rejected the AJ's
finding of sex discrimination. The agency is ordered to take remedial
actions in accordance with this decision and the ORDER below.
ORDER (D0403)
The agency shall provide complainant with the following relief:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall place complainant in the Manager, Business Service
Network position, retroactive to the date the selectee was placed in
said position.
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
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."
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall pay non-pecuniary compensatory damages to complaint
in the amount of $10,000.00.
Provide EEO training to all responsible management officials regarding
their obligations under Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.; and
The agency shall consider taking appropriate disciplinary action against
their 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 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).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its General Mail facility located
in Jackson, Mississippi, 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
March 19, 20004
__________________
Date
1Despite complainant's contention that the agency received a copy of
the AJ's decision on July 30, 2003, complainant does not support his
contention with any corroborating evidence, and thus we accept the
agency's representation that it received the AJ's decision on August
4, 2003.
2See Jackson v. Department of Treasury, EEOC Appeal No. 07A10027 (August
14, 2002).