05980945
04-11-2000
Bennett A. Southerland, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service,) Agency.
Bennett A. Southerland v. United States Postal Service
05980945
April 11, 2000
Bennett A. Southerland, )
Complainant, )
)
v. ) Request No. 05980945
) Appeal No. 01960247
William J. Henderson, ) Agency No. 2-G-1064-91
Postmaster General, )
United States Postal Service,)
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On July 15, 1998, the United States Postal Service (agency) timely
initiated a request to the Equal Employment Opportunity Commission
(EEOC or Commission) to reconsider the decision in Bennett A. Southerland
v. United States Postal Service, EEOC Appeal No. 01960247 (June 11, 1998).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at and hereinafter referred to as 29
C.F.R. �1614.405(b)).<1> The party requesting reconsideration must
submit written argument or evidence which tends to establish one
of the following two criteria: either that the appellate decision
involved a clearly erroneous interpretation of material fact or law,
29 C.F.R. �1614.405(b)(1); or that the decision will have a substantial
impact on the policies, practices, or operations of the agency, 29
C.F.R. �1614.405(b)(2).
Complainant filed a complaint alleging that the agency discriminated
against him based on race (Black) and mental disability (Recurrent
Major Depression with Psychotic Features) when he was removed from
employment on a charge of absence without leave (AWOL). The previous
decision reversed the agency's finding of no discrimination, finding that
complainant was a qualified individual with a disability and that his
absences were related to his disability. The previous decision further
found both that the agency had treated complainant less favorably than
similarly situated non-disabled employees, and that the agency had not
established that it would be an undue hardship for it to accommodate
complainant's disability. These findings were based in part on an adverse
inference drawn from the agency's unexplained failure to produce time and
attendance records for comparative employees (non-Black, non-disabled),
including three specific employees. The previous decision also found
race discrimination, in that the agency had not removed employees not
of complainant's race who had also been AWOL, again based in part on
the agency's failure to produce time and attendance records.
In its request for reconsideration, the agency reiterates its position,
rejected below, that complainant had not established that his absences
where related to his "alleged disability," and that he had not established
that race was a factor in his removal. The agency's request meets
none of the criteria for reconsideration, and is DENIED. However, the
Commission exercises its discretion to reconsider the matter on its own
motion to clarify its Order.
Having reviewed the record, the Commission finds no error in the previous
decision's finding of disparate treatment discrimination based on
disability<2> and race, and therefore no basis to disturb that finding.
In addition to disparate treatment discrimination, the previous decision
found that the agency failed to provide reasonable accommodation. The
Commission need not address this finding, given that the relief to which
complainant is entitled by virtue of the finding of disparate treatment
discrimination based on disability and race is co-extensive with whatever
relief might be awarded for failure to provide reasonable accommodation.
Accordingly, the previous decision remains the Commission's final decision
in this case. However, the Commission will clarify its Order with regard
to what elements constitute that relief.
CONCLUSION
Upon review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet any of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, it is the decision of the Commission to DENY the agency's
request for reconsideration. Having reconsidered the matter on its
own motion, this is the final decision of the Commission in this case.
There is no further right of administrative appeal from the decision of
the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to rescind the Notice of Removal at issue
in this case and offer to reinstate complainant to the position he held
with the agency at the time of his removal. Complainant shall be provided
appropriate retraining in this position. Complainant shall be provided
with back pay and benefits as indicated below. Upon complainant's
reinstatement, the agency shall confer with complainant to determine
whether and what sort of reasonable accommodation complainant may require.
(2) The agency shall determine the appropriate amount of back
pay, interest and other benefits due complainant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. If complainant declines to accept
a position with agency, the back pay period shall end with the date he
declines the offer of reinstatement. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
(3) The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as result
of the agency's discriminatory conduct towards complainant which
resulted in his termination. The agency shall afford complainant
sixty (60) days to submit additional evidence in support of his claim
for compensatory damages. Within thirty (30) days of its receipt
of complainant's evidence, the agency shall issue a final decision
determining complainant's entitlement to compensatory damages, together
with appropriate appeal rights.
(4) Training shall be provided to the managers responsible for the
agency's actions in this matter on the obligations and duties imposed
by the Rehabilitation Act and Title VII.
(5) The agency shall post at Chapel Hill, North Carolina, Post Office
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.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
April 11, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
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, as amended,
42 U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The United States Postal Service, Chapel Hill, North Carolina, 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, Chapel Hill, North Carolina, Post
Office has been found to have discriminated against the individual
affected by the Commission's finding on the bases of his race
and disability by terminating him. The Commission has ordered
that this individual be reinstated to employment, with back pay,
and be provided with appropriate retraining, with due consideration
for reasonable accommodation; that the agency provide EEO training
to its managerial personnel; that the agency determine the affected
individual's entitlement to compensatory damages; and that the agency
pay the affected individual's reasonable attorney fees and costs.
The United States Postal Service, Chapel Hill, North Carolina, 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 and will not retaliate
against employees who file EEO complaints.
The United States Postal Service, Chapel Hill, North Carolina,
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
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 After issuance of the previous decision and during the pendency of the
instant request for reconsideration, the United States Supreme Court
issued its decision in Sutton v. United Airlines, Inc., 527 U.S. 471
(1999). In Sutton, the Court held that whether an individual is
"disabled" is to be determined with reference to any mitigating measures
that the individual may be using to ameliorate the effects of his or
her impairment. In this case, the Commission finds that the Court's
decision in Sutton does not affect the finding in the previous decision
that complainant is an individual with a disability because the record
does not establish the existence of complainant's use of any mitigating
measures.