0720050053
05-12-2008
Stephanie Y. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephanie Y. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07200500531
Agency Nos. 1H-302-0075-98
1H-302-0075-00
Hearing No. 110-A0-8587X
DECISION
Following its March 4, 2005 final action, the agency filed an appeal
with this Commission requesting that we affirm its rejection of the
discrimination finding of an EEOC Administrative Judge (AJ), in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The agency
also requests that the Commission affirm its rejection of the relief
ordered by the AJ.
Starting on February 11, 1989, complainant was employed at the agency's
facility in West Palm Beach, Florida. On October 14, 1994, complainant
took a voluntary transfer to the agency's North Metro Processing and
Distribution Center in Atlanta, Georgia as a Distribution Clerk, PS-05.
The record reflects that beginning July 16, 2001 to the date of her
resignation on December 1, 2004, complainant was on leave because she
was undergoing therapy for a stress-related disorder.
Complainant filed the following two formal EEO complaints on May 13, 1998
and September 20, 2001, respectively, claiming that she was subjected
to unlawful employment discrimination.
Agency No. 1H-302-0075-98
In Agency No. 1H-302-0075-98 (hereinafter referred to "Complaint 1"),
complainant claimed that she was discriminated on the bases of disability
(right hand) and in reprisal for prior protected activity when:
(1) she was subjected to a pattern of management harassment following
a report of an on-the-job injury to her hand, on January 26, 1998, in
that management defamed her character in an attempt to contravert the
claim;2 and
(2) agency management officials accused her of faking an injury and
subsequently issued her a Notice of Removal dated March 25, 1998.3
Agency No. 1H-302-0075-00
In Agency No. 1H-302-0075-00 (hereinafter referred to "Complaint 2"),
complainant claimed that she was discriminated on the bases of sex
(female) and in reprisal for prior protected activity:
on April 25, 2000 and continuing, she was continuously harassed by the
Supervisor Distribution Operations regarding her work performance; she
was denied union representation; and she was placed on administrative
leave pending an investigation (based on false allegations that she
threatened the Supervisor Distribution Operations).
Following the investigations of Complaints 1 - 2, complainant was provided
with copies of the report of investigation and requested a hearing before
an AJ. The AJ consolidated complainant's two complaints.
Following a hearing on August 16, 2001, October 25 and 26, 2001, and
March 22, 2002, respectively, the AJ issued a decision on August 15, 2002
and a re-issued decision on October 24, 2004.4 Regarding Complaint 1,
the AJ made the following findings regarding the bases of disability
and reprisal. Regarding the basis of disability, the AJ found that
complainant did not establish a prima facie case. Specifically, the
AJ found that complainant did not show that she is an individual with a
disability; and that she did not submit documentation showing a record
of, or that she was regard as having, a disability that substantially
limited any major life activity at the time of the alleged discriminatory
events.
Regarding the basis of reprisal, the AJ found that complainant did
not establish a prima facie case of reprisal discrimination concerning
the 1998 alleged harassment. However, the AJ found that complainant
established a prima facie case of reprisal discrimination concerning
the Notice of Removal. The AJ found even though the removal action
was rescinded, the prospect of losing one's job would have deterred
a reasonable person from filing EEO complaints in the future. The AJ
found, however, that the agency articulated legitimate, nondiscriminatory
reasons for the issuance of the Notice of Removal which complainant
failed to show were a pretext for discrimination.
Regarding Complaint 2, the AJ found that complainant established a prima
facie case of reprisal discrimination when she was harassed regarding
her work performance, denied union representation and being placed on
an off-duty status because the Supervisor Distribution Operations (SDO)
falsely claimed that she had threatened him.
The AJ found that complainant failed to establish a prima facie case of
sex discrimination when she was denied union representation and being
placed on off-duty status. The AJ found, however, that complainant
established a prima facie case of sex discrimination when she was
harassed concerning her work performance. The AJ further found that
credible evidence indicating that similarly situated male employees were
being treated differently by SDO during the relevant time with respect
to talking as well as with respect to work performance.
The AJ further determined that with respect to the series of events that
occurred after April 2000, SDO retaliated against complainant after he
received notice of reinstatement of her March 25, 1998 Notice of Removal.
The AJ found that the incident that led to complainant being placed on
off-duty status was initiated by SDO's report that she threatened him.
The AJ found, however, that the placing of complainant and SDO on off-duty
status (administrative leave) was in keeping with the agency's Zero
Tolerance policy; and that complainant was not treated in a disparate
manner due to her sex. Nevertheless, the AJ determined that the incident
was a result of SDO's retaliatory conduct.
The AJ found that following the Notice of Removal being rescinded as
a result of the grievance process and being subjected to a hostile
work environment, complainant suffered depression, humiliation, sleep
deprivation and began a medication regimen, which included Celexa
and Wellbutrin. The AJ noted that even at the time of the hearing,
complainant testified that she still suffered from depression and crying
spells; and saw no relief in sight.
Complainant's two co-workers/friends corroborated complainant's testimony
and reported that complainant suffered from depression and humiliation,
had withdrawn from them and was no longer the outgoing person she had
been. Complainant submitted medical records from her physician, and
noted that she had been diagnosed with Post Traumatic Stress Disorder
and depression. Complainant also stated she suffered from fatigue,
loss of sleep, tightness in her shoulders and neck, nightmares, cold
sweats in her sleep, anger and frustration.
After a review of the testimony and medical records, the AJ found
complainant established a link between her being subjected to harassment
concerning her work performance, denial of union representation and
being placed on off-duty status because SDO falsely claimed that
she had threatened him and the resulting emotional distress. The AJ
awarded complainant $50,000.00 in non-pecuniary compensatory damages
to compensate her for the discrimination. Specifically, the AJ found
complainant suffered from depression, permanent diminishment in quality
of her life, and physical symptoms.
The Commission notes that evidence of the record reflects that the AJ
issued her original decision finding no discrimination of Complaint 2 on
August 15, 2002. We further note that the AJ reissued a new decision
on October 24, 2004, after receiving notice that the parties did not
receive her initial August 15, 2002 decision, hearing transcripts and
hearing record. We note that following its March 4, 2005 final action,
the agency filed an appeal with us requesting that we affirm its rejection
of the AJ's finding of discrimination concerning Complaint 2, and its
rejection of the relief ordered.
The record does not contain a copy of the AJ's original August 15,
2002 decision. However, we note that the record contains a copy of
the AJ's letter to the parties dated October 28, 2004. Therein, the AJ
stated that she was enclosing a copy of her decision originally issued
on August 15, 2002. The AJ further stated "the enclosed decision is a
reconstructed decision based on prior unfinished drafts of the decision
that I was able to retrieve in my word processing program and my review
of copies of the transcripts for August 16, October 25 and October 26,
2001." We find that the record clearly indicates that the AJ's original
decision dated August 15, 2002 and reissued decision dated October 24,
2004 are substantially similar.
Further, we discern no basis to disturb the AJ's findings. We find that
the findings of fact are supported by substantial evidence, and that
the AJ correctly applied the appropriate regulations, policies and laws.
Moreover, we further find that given the specific facts in this case, the
AJ's remedial award is appropriate. We note that in regard to attorney's
fees and costs, the record contains a copy of complainant's attorney's
petition fee dated June 15, 2000. Therein, the attorney requested a
total of $55,601.43 in attorney's fees and costs. Specifically, the
attorney stated that she spent 198.30 hours working on complainant's
case at the hourly rate of $275.00 for a total of $54,523.00 and incurred
legal costs in the amount of $1,078.43.
However, we note further that the record contains a copy of fee agreement
between complainant and her attorney signed and dated June 29, 2000, by
complainant. Therein, complainant agreed with the terms of her attorney's
$250.00 hourly rate. We find that because of the agreement between the
parties, the attorney should be reimbursed at the hourly rate of $250.00,
not $275.00 as stated in her petition fee. We determine that the agency
shall pay the attorney in the amount of $50,653.43 in attorney's fees and
costs ($49,575.00 in attorney's fees and $1,078.43 in costs). Therefore,
we REMAND this matter to the agency to take remedial action in accordance
with this decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall tender to complainant $50,000.00 in non-pecuniary
compensatory damages.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall tender to complainant's former attorney $50,653.43
in attorney's fees and costs.
3. The agency shall post a notice in accordance with the paragraph below.
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 verifying
that the corrective action has been implemented.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its North Metro Processing and
Distribution Center in Atlanta, 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 (K0408)
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 (M0408)
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 (S0408)
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 (Z0408)
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
May 12, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record reflects that on January 26, 1998, complainant was instructed
by the Supervisor Distribution Operations to remove her gloves while
working on the BCS machine. The record reflects that complainant
responded saying that if she injured herself, she would fill out paperwork
and have someone take her to the hospital. Shortly after taking off her
gloves, complainant complained of pain in her right hand and was taken
to the hospital by a manager. Complainant claimed that her character
was defamed when she was accused of faking her hand injury.
3 The record reflects that as a result of a union grievance, the March
25, 1998 Notice of Removal was rescinded.
4 The record reflects that on October 24, 2004, the AJ reissued a
decision after receiving notice that her initial August 15, 2002 decision,
hearing transcripts and hearing record were not received by the parties.
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0720050053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720050053
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0720050053