07A30129
09-30-2004
Audrey N. West, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Audrey N. West v. United States Postal Service
07A30129
September 30, 2004
.
Audrey N. West,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 07A30129
Agency No. 4G-770-0111-00
Hearing No. 330-A2-8083X
DECISION
Following the its final order, dated August 29, 2003, the agency filed
a timely appeal which 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
retaliated against complainant for prior EEO activity when it issued her
a Notice of Removal. The agency additionally requests that we affirm its
finding of no discrimination as to the remaining issues in the complaint.
Complainant cross- appeals, and requests that the Commission reverse
the agency's final order, and instead find that the agency discriminated
against complainant on the alleged bases, as to all issues enumerated in
the complaint.<1> Complainant also requests additional remedies beyond
what the AJ awarded. For the following reasons, the Commission affirms
in part, and reverses in part, the agency's final order.
The record reveals that, at all relevant times, complainant was a Letter
Carrier at the agency's William Rice Post Office in Houston, Texas.
Believing she was a victim of discrimination, complainant filed a formal
EEO complaint with the agency on June 27, 2000, alleging that the agency
discriminated against her on the bases of her race (African-American),
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and disability, in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and on the basis of age
(D.O.B. 09/06/55), in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and on the
basis of reprisal for prior EEO activity [arising under Title VII] when:
(1) Between October 19, 1999 and November 22, 1999, she was denied
transportation for medical treatment;
She was not informed that she could obtain a second medical opinion;
She was denied light duty;
She was sent home from work;
She was denied reasonable accommodation for her disability;
Her Manager grabbed her hand and tore a piece of paper from her hand;
She was falsely accused of moving a piece of paper from the office;
She was issued a Notice of Removal on April 17, 2002.<2>
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 found that as to issues (1) through (7),
complainant was not an individual with a disability, because her
impairment was temporary at the relevant time. As to issue (8), the
AJ found that complainant was an individual with a disability at the
relevant time, but that complainant still failed to establish a prima
facie case of disability discrimination because she was not a �qualified�
individual with a disability since she was totally disabled from work.
The AJ found no disability discrimination as to any issue.
As to issue (8), the AJ found that complainant established a prima
facie case of retaliation, noting the close proximity in time between
complainant's protected EEO activity and the adverse action. With regard
to the bases of race, sex and age, the AJ found that complainant
established a prima facie case as to issue (3), but not as to any of
the other claims.
The AJ then found that as to issues (1) through (7), the agency had
articulated legitimate, nondiscriminatory reasons for its actions,
which complainant failed to establish were pretext for discrimination.
As to issue (8), however, the AJ found that complainant met her burden
of showing that the agency's reason was pretext for retaliation. In so
finding, the AJ noted that the agency's reasons were unworthy of belief.
Specifically, complainant was not Absent Without Leave (AWOL) as the
agency asserted. The AJ also found unworthy of belief the agency's
assertion that complainant had failed to keep the agency aware of her
medical condition and the status of her inability to report to work.
The AJ found that to the contrary, complainant was on an OWCP-approved
leave, supported by medical documentation stating she would be unable to
work for a specified time period. The AJ awarded the Notice of Removal
expunged from complainant's file, an award of $1,000.00 in compensatory,
non-pecuniary damages for complainant, training for the responsible
management officials, and official time for complainant's representative.
The agency's final order implemented the portion of the AJ's decision
that found no discrimination as to issues (1) through (7) on all of the
alleged bases. The final order rejected, however, the portion of the
AJ's decision in which retaliation was found as to issue (8). On appeal,
the agency argues that the AJ erred in granting complainant's motion to
amend her complaint to include the April 17, 2002 Notice of Removal.
Moreover, the agency argues that it was merely a proposed notice of
removal, and that further action would have to be taken for it to become
effective. Finally, the agency contends that the AJ erred by finding
retaliation, as this was not supported by substantial evidence of record.
In response to complainant's appeal, the agency contends that the AJ's
finding of no discrimination as to issues (1) through (7) was proper
and should be affirmed.
In her brief, complainant contends that she was discriminated against
as to all of the issues raised in her complaint, and she re-states her
version of the facts. Additionally, complainant contends that the award
of $1,000.00 was inadequate. Complainant also contends that the AJ should
have awarded her reimbursement for certain fees of her EEO representative.
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.
Initially, we note that Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000). Here, we find
that the AJ's decision to allow complainant to amend her complaint to
include issue (8) was not an abuse of discretion.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination as to the retaliatory issuance of the
Notice of Removal only. The findings of fact are supported by substantial
evidence, and the AJ correctly applied the appropriate regulations,
policies, and laws. Therefore, we AFFIRM that portion of the final order
which found no discrimination as to issues (1) through (7), however,
we REVERSE the final order's finding of no discrimination as to issue (8).
On appeal, complainant contends that the AJ ought to have held a separate
hearing on damages. In addition, complainant requests $3,000.00 in
non-pecuniary damages as compensation for the emotional pain caused
by all of the agency's actions raised in her complaint. Initially,
we find that the record contains sufficient evidence pertaining to
complainant's alleged damages caused by the retaliatory Notice of
Removal, for a determination to be made in this regard. We find
that complainant suffered stress, fear and worry due to the agency's
retaliatory action. After a thorough review of the record, we agree
that an award of $1,000.00 is appropriate to compensate complainant for
her pain resulting from the agency's retaliation. We point out that
non-pecuniary compensatory damages are designed to remedy a harm and
not to punish the agency for its discriminatory actions. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating
that compensatory damages determination must be based on the actual harm
sustained and not the facts of the underlying case). The Commission
notes that this award is not �monstrously excessive� standing alone,
is not the product of passion or prejudice, and is consistent with the
amount awarded in similar cases. See Weatherspoon v. Department of
Agriculture, EEOC Appeal No. 01966395 (March 4, 1999)($1,000.00 awarded
where the agency's discriminatory non-promotion caused complainant
anguish humiliation and torment); Adesanya v. United States Postal
Service, EEOC Petition No. 04980016 (February 19, 1999) ($1,500.00
awarded where the agency's discriminatory action caused complainant
irritability, difficulty sleeping, and a constant headache); Partridge
v. United States Postal Service, EEOC Appeal No. 01966191 (August 13,
1998)($1,000.00 awarded where the agency's discriminatory action caused
complainant emotional pain).
On appeal, complainant also requests $9,974.47 in pecuniary damages,
which includes reimbursement of a fee of $250.00 for payment to her EEO
representative. This claim is denied, as complainant has not demonstrated
that these losses were incurred due to the retaliatory action. In so
finding, we note that these costs were incurred by complainant before the
retaliatory action occurred. As to complainant's request for $250.00 for
her representative, we note that pursuant to 29 C.F.R. � 1614.501(e)(iii),
attorney's fees are only available for the services of members of the
Bar and law clerks, paralegals or law students under the supervision of
members of the Bar. Accordingly, this claim is likewise denied.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
reverses the agency's final order as to the retaliatory termination
only, and remands the matter to the agency to take corrective action in
accordance with this decision and the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final and to
the extent it has not already done so, the agency is ordered to:
pay complainant $1,000.00 in non-pecuniary damages;
ensure that if complainant's representative took personal leave for all
of the time spent at the hearing of this matter as well as one hour for
preparing closing argument and all of the time spent during the bench
decision, that leave will be restored because the agency should have
provided complainant's representative with official time to attend.
expunge from all official and unofficial files the Notice of Removal
issued to complainant, which is dated April 17, 2002, and the Letter
of Warning that was issued pursuant to the grievance settlement as a
reduction of the Notice of Removal.
provide at least four hours of training for the responsible management
officials, regarding the agency's responsibilities under the statutes
enforced by the Commission, with special emphasis on the anti-retaliation
provisions of those statutes and the relevant regulations. This training
is in addition to any training they may have had previously.
consider taking appropriate disciplinary action against the 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 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. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s). against an employee in violation of the
Commission's regulations and Title VII.
POSTING ORDER (G0900)
The agency is ordered to post at its William Rice Post Office in Houston,
Texas 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
September 30, 2004
__________________
Date
1 The record indicates that complainant filed an appeal (EEOC Appeal
No. 01A40039) with the Commission on or about August 3, 2003, subsequent
to the AJ's issuance of a decision, but prior to the agency's issuance
of a final order. The Commission administratively closed 01A40039 on
November 21, 2003. After the agency had issued its final order on or
about August 29, 2003, complainant submitted a statement in support of
appeal, dated September 22, 2003. The September 22, 2003 statement will
now be construed herein to be complainant's cross-appeal.
2 The Administrative Judge permitted complainant to amend her complaint
to add this claim that was not initially raised. See AJ Decision, at 9.
The record indicates that the Notice of Removal was subsequently reduced
to a letter of warning, pursuant to a grievance settlement.