07A60063
10-24-2006
Beatriz Sarabia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beatriz Sarabia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A60063
Hearing No. 260-2005-00116X
Agency No. 4J-530-0131-04
DECISION
Following its January 24, 2006 final order, the agency filed a timely
appeal. On appeal, the agency requests that the Commission affirm its
rejection of an EEOC Administrative Judge's (AJ) finding of discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ. For the
following reasons, the Commission REVERSES the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Mail Processing (Distribution) Clerk in Sheboygan, Wisconsin.
Complainant filed a formal EEO complaint on October 29, 2004, alleging that
she was discriminated against on the basis of national origin (Hispanic)
when:
On June 19, 2004, complainant's bid position was reposted and in
July 2004, her non-scheduled day was changed from Friday to
Wednesday.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an AJ. Complainant requested a hearing and the AJ held a
hearing on June 8, 2005, and issued a decision on December 13, 2005. In
her decision, the AJ found that the agency discriminated against
complainant on the basis of national origin (Hispanic) when complainant's
day off was involuntarily changed from Friday to Wednesday. The AJ found
that complainant was the only Hispanic employee at the Sheboygan, Wisconsin
Post Office. Further, the AJ found that although the agency claimed it
changed complainant's day off for operational reasons, the evidence showed
the agency's reasons to be a pretext for discrimination. Witnesses stated
that the volume of mail was no greater on Friday than it was on Wednesday,
and if anything, Wednesday's volume was greater. The agency's stated
desire to reduce overtime hours was not furthered by changing complainant's
day off, either. Rather, the AJ found that the agency's true reason for
changing complainant's schedule was to accommodate the requests of non-
Hispanic employees who wished to have Friday off, which the agency could do
if complainant worked on Friday, instead of Wednesday. The AJ ordered the
agency to return complainant to her previous schedule and non-scheduled day
off, as well as pay complainant's attorney's fees, compensatory damages,
provide training for agency officials, and post a notice that
discrimination occurred at the Sheboygan Post Office.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that she was subjected to discrimination as
alleged.
On appeal, the agency argues, among other things, that the AJ improperly
found that complainant had established a prima facie case of national
origin discrimination when both responsible management officials denied
knowing that complainant was Hispanic, and despite complainant's failure to
identify any similarly situated employees, not in her protected class, who
received preferential treatment. Complainant is the only Clerk Dispatcher
at Sheboygan Post Office who had Fridays off, the agency argues.
Accordingly, the agency requests that the Commission affirms its rejection
of the AJ's finding of discrimination. The agency argues that should the
Commission find discrimination, the Commission should find that the AJ
improperly granted complainant's request for attorney's fees at the
prevailing hourly rate of $250 an hour, rather than the rate contained in
complainant's fee agreement.[1]
ANALYSIS AND FINDINGS
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.
To prevail in a disparate treatment claim such as this, complainant must
ordinarily satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
We find, after a careful review of the record, no reason to disturb the
AJ's finding that discrimination occurred as alleged. Specifically, we
note that the record supports the AJ's finding that complainant's
supervisor was aware that complainant spoke Spanish and certainly aware of
the unusual spelling of complainant's first name and aware of her last name
(whether a married name or not), all of which would reasonably have made
her aware of complainant's Hispanic heritage. We find that complainant's
supervisor advised the Post Master regarding the proposed change in
complainant's schedule and that the Post Master relied in his decision on
the supervisor's input. Thus, we find that complainant's national origin
was known to the officials responsible for effecting the schedule change
and the AJ's factual conclusion in this regard is supported by the
evidence.
We also find the record supports the AJ's finding that the agency's stated
reasons for changing complainant's schedule were a pretext to mask national
origin discrimination. Complainant's supervisor testified that she could
not, under the collective bargaining agreement, change complainant's day
off in order to accommodate a leave request by another employee. Rather,
she had to have an "operational need" to change complainant's schedule.
The AJ found that the "operational need" to change complainant's schedule
did not exist either before or after complainant's schedule was changed.
Neither the Post Master nor complainant's supervisor considered any
documentation to show that the volume of mail to be processed on Fridays
was greater than that processed on Wednesdays; nor did either official rely
on any verifiable data that suggested overtime hours could be reduced by
requiring complainant to work on Friday. In fact, the evidence suggests
otherwise.
We find the evidence supports the AJ's finding that the agency's reasons
were false and that discrimination was the real reason the agency decided
to change complainant's schedule. Both agency officials knew that if
complainant's non-scheduled day was changed to Wednesday, the agency could
more easily accommodate the leave requests of its non-Hispanic clerks. We
find the record supports the AJ's determination that the agency's decision
was, more likely than not, motivated by discrimination.
Attorney's Fees
Title VII authorizes the award of reasonable attorney's fees, including for
an attorney's processing of a compensatory damages claim. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, complainant must
first show that he or she is a prevailing party. Buckhannon Bd. and Care
Home Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S.
598 (2001). The fee award is ordinarily determined by multiplying a
reasonable number of hours expended on the case by a reasonable hourly
rate, also known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B);
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July
17, 1998).
The AJ found, and we concur, that the reasonable hourly rate in this matter
is $250. While complainant's attorney had an agreement with complainant
that he would charge her a reduced rate because she was a member of the
American Postal Workers Union (APWU), the Commission has held that
attorneys who demonstrate that they charged reduced rates to federal
employees in discrimination cases, based on public interest motives, are
entitled to receive an hourly rate at the prevailing market rate,
notwithstanding a fee agreement. See Elias v. Department of Homeland
Security, EEOC Appeal No. 01A43792 (Sept. 12, 2005) (citation omitted).
We find the AJ properly awarded attorney's fees in the amount of
$19,627.35,
In her decision, the AJ further found that complainant's attorney claimed
14.4 hours for work prior to filing the formal complaint, from which the AJ
deducted 2 hours for reviewing the complaint, leaving 12.4 hours for which
the AJ made no award to complainant's attorneys. Pursuant to 29 C.F.R. �
1614.501(e)(iv), attorney's fees for pre-complaint work may not be awarded
unless the agency refuses to implement an AJ's finding of discrimination,
and the Commission upholds the finding of discrimination on appeal.
Therefore, since here the agency appealed the AJ's finding of
discrimination, and we are upholding the AJ's finding of discrimination, we
find that complainant is entitled to the entire 14.4 hours of pre-complaint
attorney hours (or an additional 12.4 to the sum already awarded herein)
for a total award of attorney's fees and costs of $22,799.72. See Muse v.
United States Postal Serv., EEOC Appeal No. 07A50076 (Sept. 15, 2006).
We therefore REVERSE the agency's final decision. We REMAND the matter to
the agency to implement the order of the AJ, as slightly modified herein.
ORDER
The agency shall take the following actions:
1. Within 30 days of the date this decision becomes final, the agency
shall change complainant's non-scheduled day from Wednesday back to
Friday.
2. Within 30 days of the date this decision becomes final, the agency
shall pay complainant non-pecuniary, compensatory damages in the
amount of $5,000.00.
3. Within 30 days of the date this decision becomes final, the agency
shall pay to complainant, attorney's fees in the amount of $22,799.72.
4. Within 180 days of the date this decision becomes final, the agency
shall require 4 hours of training, regarding identification and
elimination of national origin discrimination under Title VII in the
workplace, to all supervisory personnel currently employed at the
Sheboygan Post Office in Sheboygan, Wisconsin.
5. Within 30 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the individuals,
still employed by the agency, responsible for the discrimination in
this matter. 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 -
5 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Sheboygan Post Office, Wisconsin
facility 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
October 24, 2006
__________________
Date
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[1] Neither party challenges the remaining relief awarded by the AJ, and
accordingly, we confine our decision to consideration of the AJ's finding
of national origin discrimination and award of attorney's fees.