07a50052_r
06-29-2006
Anita Clements, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anita Clements v. United States Postal Service
07A50052
June 29, 2006
.
Anita Clements,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A50052
Agency No. 1H-304-0029-02
Hearing No. 110-2003-08580X
DECISION
Following its March 1, 2005 final order, the agency filed an appeal in
which 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 sex. The agency, alternatively,
requests that the Commission reduce the AJ's award of compensatory
damages and leave.
Complainant, a Maintenance Operations Support Manager, employed at
the agency's Atlanta Bulk Mail Center facility, filed a formal EEO
complaint with the agency on December 20, 2002, alleging that the agency
discriminated against her on the bases of race (African-American), sex
(female), and color (black) when<1>:
(1) Complainant's major job duties as an EAS-18 Maintenance Operations
Support Manager were reduced and transferred to similarly situated male
employees;
Complainant was excluded from management meetings;
Complainant's supervisor withheld key information from complainant that
she needed to do her job.
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, dated January 18,
2003, in which the AJ found that complainant established that sex
discrimination occurred when her major job duties were transferred to
similarly situated male employees (claim (1)). The AJ found credible
the testimony of male witnesses to whom complainant's former job duties
had been transferred. The AJ concluded that complainant was thereby
aggrieved and that she established that more likely than not, the reasons
provided by the agency were a pretext for discrimination. In reaching
this conclusion, the AJ found that the agency's explanations were either
that complainant's responsibilities were not removed or that her duties
were reassigned to others by her supervisor, within whose purview it was
to make such reassignments. In either case, the AJ found the testimony
of complainant's co-workers more credible than that of her supervisor.
The AJ found that complainant had not established discrimination with
respect to her race, or on any basis with respect to claims (2) and
(3).<2> The AJ ordered the following relief:
The agency shall pay complainant compensatory damages in the amount of
$15,000.
The agency shall pay complainant an amount equal to three weeks of
vacation leave she took in 2002.
The agency shall notify all employees of the United States Postal
Services, Atlanta Bulk Mail Center facilities of their right to be free
of unlawful discrimination and assurance that the discrimination based
on sex shall not recur.
The agency's final order rejected the AJ's decision with respect to the
finding of discrimination. On appeal, the agency argues that the AJ
erred by finding that complainant had established a prima facie case of
sex discrimination concerning the removal of complainant's job duties,
because complainant was not aggrieved when some of her work was reassigned
to other employees. Alternatively, the agency argues on appeal that the
amount of compensatory damages and leave awarded by the AJ is unsupported
by the evidence presented. Complainant argues on appeal that the AJ's
decision should be upheld.
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.
As an initial matter, we note that it has long been common practice for
AJs to conduct pre-hearing matters by telephone, and to take testimony
by telephone where a witness would otherwise be unavailable to testify.
Louthen v. United States Postal Serv., EEOC Appeal No. 01A44521 (May
17, 2006) (citing Mozee and Bailey v. United States Postal Service,
EEOC Appeals Nos. 01A34265 and 01A34266 (January 10, 2005) (prehearing
conducted by telephone); Freeman v. United States Postal Service,
EEOC Appeal No. 01924204 (September 30, 1993) (witness testimony taken
by telephone); Davis v. Department of Transportation, EEOC Appeal
No. 01883565 (January 18, 1989), req. to reopen, den., EEOC Request
No. 05890471 (November 9, 1989) (witness testimony taken by telephone)).
In the instant case, the testimony of two witnesses (out of a total
of 11 witnesses) was taken by telephone without objection of the
parties.<3> The instant hearing was held prior to the Commission's
decision in Louthen. There was no credibility finding made by the AJ
concerning the telephonic testimony of one of the witnesses (Witness A).
Although the AJ did find the other witness (Witness B) who testified
telephonically to be credible, it does not appear that the AJ relied
on the demeanor of Witness B to make this credibility determination.
Rather, the AJ relied on the �detail� that Witness B provided in support
of his testimony. Furthermore, the AJ also relied on the credibility
of Witness C, who testified in person, and much documentary evidence,
to reach his findings. The Commission, applying the principles set forth
in Louthen, finds that the AJ did not abuse her discretion in allowing,
with no objections, the telephone testimony of two witnesses considering
the totality of the circumstances.
In her decision, the AJ found that according to complainant's testimony,
prior to September 2001, her job duties included managing inventory,
managing contracts, overseeing HVAC (air condition units) and MOPE
(forklifts, rider jacks and pallet jacks), managing the Visual Maintenance
Activity Reporting System (VMARS), and controlling the use of keys
throughout the facility. The AJ found that the testimony of witnesses
and documentary evidence established that after S1 became complainant's
supervisor in September 2001, he reassigned complainant's major job duties
to other male employees either under his direct supervision, or to whom
he was otherwise authorized to make direct assignments. Specifically,
S1 reduced complainant's contract duties and assigned them to E1.
Complainant's VMARS duties were given to E2. Complainant's duties to
oversee HVAC and MOPE equipment were redirected to E3 in November 2001.
Complainant was left with monitoring the costs of HVAC and MOPE equipment,
but was no longer involved in their repair and maintenance. Complainant's
duties regarding the control of facility keys was reassigned to E1 in
September 2003.
At the hearing, and again on appeal, the agency argues that complainant
did not suffer an adverse employment action by the reduction and transfer
of her job duties. Rather, the redistribution and realignment of work
assignments is the responsibility of complainant's supervisor, S1,
whose job it is to assign work. Moreover, because complainant received
a �far exceeds expectations� complainant is not aggrieved by S1's actions
regarding complainant's responsibilities. The agency argues that although
complainant may be unhappy about S1's operational decisions, complainant
failed to show how her future employment opportunities and performance
evaluations are impacted. Thus, the agency argues that complainant
has not suffered a material change in the terms and conditions of her
employment sufficient to show that she is aggrieved.
Finding of discrimination
The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for
which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). The Commission has previously
recognized an adverse employment action in the removal of job duties
and responsibilities and we find that the AJ properly found that claim
(1), concerning the removal of some of complainant's job duties states a
claim for which a remedy exists. See Smith v. Department of the Army,
EEOC Appeal No. 01995245 (November 6, 2001) (complainant established
an adverse action when complainant was relieved of her collateral EEO
duties); Merrill v. Department of Defense, EEOC Appeal No. 01984302
(September 26, 2001) (removal of job assignment and duty to ensure
the safety of her students constituted an adverse action), request for
reconsideration denied, EEOC Request No. 05A20096, (June 25, 2003).
We find, as did the AJ, that complainant established a prima facie case
of discrimination on the basis of sex with respect to claim (1), wherein
complainant established that some of her job duties were redirected and
reassigned to similarly situated male employees by S1. We find substantial
evidence in the record to support the AJ's conclusion that complainant's
duties with respect to contracting, VMARS, HVAC and MOPE oversight, and
key control, were either reduced or redirected to male employees and that
this action adversely impacted the terms and conditions of complainant's
employment. We find that complainant's testimony regarding the reduction
of her contracting duties is supported by the hearing testimony of E1,
and we note that the AJ found both witnesses credible. We therefore
find no reason to disturb the AJ's finding of discrimination.
Remedies
The agency argues on appeal that the AJ's award of $15,000 to complainant
in compensatory damages and an amount equal to three weeks of vacation
leave is unsupported by the record and asks that the award be reduced.
The agency contends that the AJ's award is monstrously excessive
considering the amount of damages complainant suffered and the limited
issue upon which the AJ found discrimination, when compared to awards
in similar cases. Complainant, the agency points out, did not claim
to suffer any physical problems, did not consult with a psychologist or
psychiatrist, but instead availed herself of free counseling. Other than
having to explain to her children why she was angry or upset, the agency
notes that complainant did not show that the discrimination she suffered
at work had any impact in her home life or elsewhere. The agency
further argues that the absence of any testimony from complainant's
family, friends, or anyone else regarding the effects of discrimination
indicates that complainant's award should be nominal, at best.
On appeal, complainant states that she should be awarded $40,000 for
the pain, suffering, humiliation and embarrassment she has suffered.
Complainant contends that she was made to feel that she is unequal to
her male counterparts, and that she has been put in a state of mind
full of fear and intimidation for several years to the point that she
has suffered both emotionally and mentally from the work-related stress.
Complainant claims that in addition to the three weeks she was compelled
to take off for personal time, which she would otherwise have used
for family vacation time, she had problems with her spouse, children
and family members. Complainant states that she has suffered from
headaches, insomnia, loss of hair, and has begun to take medication to
try to eradicate these health issues.
The AJ found that although complainant's complaint included several
claims, clearly complainant's claim of greatest concern was the loss of
her job duties because of her sex. The AJ noted that complainant sought
counseling from the agency's EAP program for five months and talked with
another counselor at a community program in July 2002. The AJ considered
that complainant testified that her family relationships were affected
because she would become angry and upset as a result of pressure at work.
In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar cases.
In so far as complainant has submitted evidence of emotional distress,
we note that the Commission has awarded compensatory damages in a case
somewhat similar to complainant's in terms of harm sustained. Norte
v. Department of Energy, EEOC Appeal No. 01A24738 (December 12, 2003)
(complainant awarded $15,000 after her job classification was changed and
she felt humiliated, demeaned, and degraded, and had overwhelming feelings
of dread, foreboding, anxiety, sadness, helplessness, and hopelessness).
The Commission finds the instant matter analogous to Norte with respect to
the nature, severity, and duration of harm. After considering the nature
of the agency's action, in conjunction with complainant's testimony,
we find that $15,000.00, plus an amount equal to three weeks of annual
leave is an appropriate amount of non-pecuniary compensatory damages.
The Commission finds no reason to alter the restoration of leave to
complainant.
We REVERSE the agency's finding of no discrimination with respect to claim
(1) on the basis of sex. We REMAND the matter to the agency to comply
with the Order issued by the AJ, as reprinted and slightly modified,
herein.
ORDER
Within 30 days of the date this decision becomes final the agency shall
take the following actions:
The agency shall pay complainant compensatory damages in the amount of
$15,000.
The agency shall pay complainant an amount equal to three weeks of
annual leave she took in 2002.
The agency shall consider taking disciplinary action against
the individual responsible for the agency's actions found to be
discriminatory herein. If the agency decides to take disciplinary
action, it shall identify it in a compliance report the action taken.
If the agency decides not to take disciplinary action, it shall set
forth in its compliance report the reason(s) for its decision not to
impose discipline.
The agency shall send evidence that they have complied with provisions
1 - 3 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Atlanta Bulk Mail Center facility,
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.
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
June 29, 2006
__________________
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 Title VII of the Civil Rights At of 1964 (Title VII),
as amended, 42 U.S.C. � 2000(e) et seq., has occurred at the agency's
Atlanta Bulk Mail Center facility, in Atlanta, Georgia.
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.
This facility was found to have discriminated against complainant on the
basis of sex. The facility was ordered to pay compensatory damages and
restore leave to complainant. This facility 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 and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and 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.
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1We have listed complainant's claims in the order they appear in the
AJ's decision of January 18, 2005.
2Neither party appealed the AJ's findings of no discrimination regarding
claims (2) or (3) on any bases or claim (1) on the basis of race. Thus,
claims (2) and (3) and the claim of race discrimination in claim (1)
will not be addressed in this decision.
3�In Louthen, the Commission has promulgated its policy regarding
the taking of telephonic testimony in the future by setting forth
explicit standards and obligations on its Administrative Judges and the
parties. Louthen requires either a finding of exigent circumstances
or a joint and voluntary request by the parties with their informed
consent. When assessing prior instances of telephonic testimony, the
Commission will determine whether an abuse of discretion has occurred
by considering the totality of the circumstances. In particular, the
Commission will consider factors such as whether there were exigent
circumstances, whether a party objected to the taking of telephonic
testimony, whether the credibility of any witnesses testifying
telephonically is at issue, and the importance of the testimony given
telephonically. Further, where telephonic testimony was improperly taken,
the Commission will scrutinize the evidence of record to determine
whether the error was harmless, as is found in this case.� Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).