07A20082
09-04-2003
Ury Marcus, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ury Marcus v. United States Postal Service
07A20082
09-04-03
.
Ury Marcus,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20082
Agency No. 4D-280-0287-99
Hearing No. 140-A0-8176X
DECISION
Following its April 11, 2002 final order, the agency filed a timely appeal
that the Commission accepts pursuant to 29 C.F.R. � 1614.405. 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 national origin (Hispanic) when he was
treated differently than his co-workers with respect to his request for
a route inspection. For the following reasons, the Commission MODIFIES
the agency's final order.
At the time of his complaint, complainant was a city letter carrier at
the agency's Highland Station in Fayetteville, North Carolina. In his
complaint, he maintained that he and another carrier, C-1 (Caucasian),
requested route inspections in October 1998. After resubmitting his
request on about two other occasions, the matter was forwarded to the
Station Manager, A-1. According to complainant, his route exceeded
eight hours by almost an hour.
Thereafter, in September 1999, the Acting Station Manager, A-2 (Black)
conducted a route inspection of both complainant's and C-1's route.
Because it was determined that complainant's route exceeded eight hours
by an average of thirty minutes, complainant was told that an adjustment
was not warranted. The remedy, according to A-2, would be to provide
complainant with an assistant or to pay him overtime. According to
the record, C-1's route exceeded eight hours by only three minutes.<1>
Unlike complainant, however, C-1's route was adjusted.
At the hearing, A-2 testified that there must have been an error on
C-1's inspection sheet because he did not believe that an adjustment
would have been made for only three minutes. A-2, however, provided no
evidence of how such a mistake could have been made nor did he proffer
any plausible explanation for why C-1's route was adjusted.<2>
The AJ found that complainant established a prima facie case of national
origin discrimination with respect to the agency's treatment of C-1.
Ultimately, the AJ found pretextual the agency's assertion that an
adjustment of complainant's route was not warranted. Her determination
was based on the evidence showing that C-1's route was adjusted even
though it only exceeded eight hours by three minutes, and the agency's
failure to explain the distinction. Although A-2 testified that a mistake
must have been made, the AJ found no support for this assertion.<3>
Finding complainant's testimony to be credible, the AJ found that the
only apparent distinction between complainant and C-1 was their national
origin/race. In finding discrimination, the AJ ordered the agency to:
Conduct a special route count for the complainant's present route,
if complainant believes an adjustment is warranted, within sixty (60)
days from the date of this decision.
Provide training to complainant's supervisors who were involved in the
decision regarding the adjustment.
Post a notice at the affected location advising agency personnel that
the U.S. Postal Service has been found to have discriminated against
an employee in Fayetteville, North Carolina.
Pay the complainant $5,000.00 for non-pecuniary damages.
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). After a careful review of the record,
we discern no basis to disturb the AJ's finding of discrimination.
The findings of fact are supported by substantial evidence, and the AJ
correctly applied the appropriate regulations, policies, and laws.
On appeal, the agency, among other things, argued that:
1. The record clearly shows that the agency had a legitimate
nondiscriminatory reason for adjusting C-1's route. In this regard,
the agency argued that a document in the record indicated that C-1's
route was adjusted in order �to improve the efficiency of delivery�
because it geographically intersected a route that was under eight hours.
2. Complainant did not establish that he was entitled to compensatory
damages.
With respect to the agency's first contention, we note that at no time
during the investigation or at the hearing did the agency advance
the argument that C-1's route was adjusted for efficiency reasons.
Thus, the agency had the opportunity to explain the difference in its
treatment of complainant and C-1, but it did not do so. Consequently,
we find that there was substantial evidence in the record to support
the AJ's finding of pretext and of discrimination.
With respect to contention (2), the record indicates that on January
31, 2002, the AJ notified the parties that a decision had been rendered
in favor of complainant on the merits of his complaint. Complainant,
however, was ordered to provide a request for damages. On February 3,
2002, complainant responded with a request for $100,000.00. Complainant,
however, did not provide any evidence or argument in support of his
request. Consequently, on February 5, 2002, the AJ informed complainant
that his �[r]equest . . . does not contain any supportive evidence that
such an award is reasonable.� To support his claim, complainant was
asked to submit items such as affidavits or medical statements indicating
any medical bills, loss of pay, pain and suffering, etc. There is no
evidence that complainant ever responded to the AJ's February 5th letter.
Therefore, the agency, in its February 11, 2002 response, argued that
there was no support for complainant's claim of compensatory damages.
On February 28, 2002, the AJ issued her a decision in this matter.
As previously noted, she ordered the agency to pay complainant $5,000.00
in nonpecunniary damages. The AJ did not indicate how she arrived at the
determination that complainant suffered $5,000.00 in compensatory damages.
Based on our review of the record, we find that the agency is correct that
the AJ's award was unsupported by the record. Prior to his February 3,
2002 response to the AJ, complainant never requested compensatory damages.
There is also no evidence in the record indicating that he incurred
such damages. Consequently, we must affirm the agency's denial of
compensatory damages.
After a careful review of the record, including evidence not specifically
discussed in this decision, the Commission MODIFIES the agency's final
order. The agency will take corrective action in accordance with this
decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action, within 60
calendar days unless otherwise specified:
Conduct a special route count for the complainant's present route,
if complainant believes an adjustment is warranted, within sixty (60)
days from the date of this decision.
The agency shall provide EEO training that emphasizes the elimination
of discrimination in the workplace to complainant's supervisors who
were involved in the decision not to adjust his route. The Commission
does not consider training to be a disciplinary action.
The agency shall 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Highland Station in Fayetteville,
North Carolina 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
___09-04-03_______________
Date
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 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 Highland Station in Fayetteville,
North Carolina (Highland Station) confirms its commitment to comply with
these statutory provisions.
The Highland Station supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Highland Station was found to have discriminated against an employee
because of his national origin when it refused to adjust his route.
The Highland Station has been ordered to, among other things, conduct a
new route inspection and to provide training to the management officials
who were involved in the decision not to adjust the employee's route.
The Highland Station 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 Highland Station 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
1ROI at page 49.
2Hearing Transcripts at pages 27 - 29.
3In fact, the AJ indicated that an agency witness, who might have resolved
this issue, was withdrawn by the agency.