01A33715
01-18-2005
Steven A. Espinoza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven A. Espinoza v. United States Postal Service
01A33715
January 18, 2005
.
Steven A. Espinoza,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33715
Agency Nos. 4E-800-0241-98; 4E-800-0286-98; 4E-800-0321-98;
and 4E-800-0098-00
Hearing Nos. 320-99-8285X; 320-99-8365X; 320-99-8491X;
and 320-A0-8335X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal in the above-entitled matter. Complainant filed four EEO
complaints alleging that the agency had discriminated against him on
the bases of national origin (Hispanic), sex (male), color (Brown),
disability (chest problems), age (D.O.B. August 16, 1936), and reprisal
for prior EEO activity. Complainant requested hearings before an EEOC
Administrative Judge (AJ) on all four complaints. The complaints were
consolidated and the AJ held a hearing on the matter. Following the
hearing, the AJ issued his decision finding discrimination on one of
complainant's allegations.
The AJ determined that complainant established his prima facie case of
reprisal when the Injury Compensation Specialist authorized 72 hours of
continuation of pay (COP) on August 3, 1998, and the Postmaster refused to
provide it to complainant. The AJ then found that the Postmaster failed
to provide any reason for his action. Therefore, the AJ concluded that
complainant established that the Postmaster retaliated against him solely
on this claim. As remedy, the AJ ordered the agency to pay complainant $
2,000.00 in compensatory damages.<1>
The agency failed to issue a final decision. Here, the agency did not,
within 40 days of its receipt of the AJ's decision, issue any order.
As a result, because of the agency's inaction, the AJ's decision became
the agency's final order by operation of law. 29 C.F.R. � 1614.109(i);
MD-110, at 9-3.
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.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the Administrative Judge's
findings and conclusions.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. � 1981a(b)(3). The Commission finds that the AJ properly
determined that complainant established a nexus between the alleged harm
and discrimination. Upon review, we find that the AJ appropriately
determined that complainant incurred these losses due to the
discriminatory action and that he is entitled to an award.
We must also review whether or not the AJ's award of non-pecuniary damages
is appropriate. The AJ determined that complainant was entitled to $
2,000 based on the agency's retaliatory actions. The AJ indicated that
complainant did not proffer evidence allocating causation of his emotional
distress between the four complaints, however, the AJ determined that
some of the harm experienced by complainant was attributable to the
Postmaster's refusal to approve the 72 hours. Upon review, we find
that this award is supported by the substantial evidence of the record
and is consistent with case precedent. See Amaro v. United States
Postal Serv., EEOC Appeal No. 01A30313 (December 12, 2003) (awarding $
3,500 where complainant and his wife stated that he experienced anxiety,
depression, nausea, weight loss and gain, diarrhea, chest pain, insomnia,
lack of concentration, irritability, loss of enjoyment of life, an
injured reputation and marital strain, however, not all of the evidence
submitted was related to the issues for which discrimination was found,
and some predated the incidents in question); Resnick v. Department of
Homeland Security, EEOC Appeal No. 07A20040 (October 30, 2003) (awarding
$ 2,000 where other factors, in addition to unlawful retaliation, were
shown to have also contributed to complainant's condition).
ORDER
The agency shall, to the extent it has not done so already, pay
complainant $ 2,000.00 in compensatory damages. The agency shall complete
this action within forty-five (45) calendar days from the date on which
the decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its Post Office in Alamosa, Colorado,
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 (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
January 18, 2005
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which
found that a violation of the Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.; and Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Postal Service, Alamosa, Colorado Post Office, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, Alamosa, Colorado Post Office, has been
ordered to remedy a former employee affected by the Commission's finding
that he was discriminated against because of his prior EEO activity.
As a remedy for the discrimination, the United States Postal Service,
Alamosa, Colorado Post Office shall provide the affected employee with
compensatory damages. The United States Postal Service, Alamosa,
Colorado Post Office, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The United States Postal Service, Alamosa, Colorado Post Office,, will
not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614
1Complainant's representative was not an attorney, therefore, attorney
fees were not awarded by the AJ.