01972255
11-05-1998
Bobby M. Brawley v. United States Postal Service
01972255
November 5, 1998
Bobby M. Brawley, )
Appellant, ) Appeal No. 01972255
) Agency No. 4D-280-1092-95
v. ) Hearing No. 140-95-8161X
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On January 13, 1997, Bobby M. Brawley (hereinafter referred to as
appellant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from a final decision of the United States
Postal Service (agency) concerning his complaint of discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The final agency decision was dated December 17,
1996, and was received by appellant's attorney on December 20, 1996.
Accordingly, the appeal is timely, and is accepted by this Commission
in accordance with the provisions of EEOC Order No. 960, as amended.
The issue on appeal is whether appellant proved, by a preponderance of
the evidence, that he was discriminated against on the basis of his race
(black) when he was terminated from employment in January 1995.
The record reveals that appellant was hired as a Part-time Flexible City
Carrier in November 1994, and was subject to a 90-day probationary period.
Appellant acknowledged that his supervisor had several discussions with
him regarding his failure to deliver his route in a timely manner. On
January 5, 1995, appellant was involved in a motor vehicle accident while
delivering his route. Specifically, after returning to his vehicle which
was parked in a customer's driveway, appellant accelerated too quickly and
ran into a tree.<1> After a brief conversation with the owner, appellant
continued delivering his route. Appellant did not immediately report
the accident, although he acknowledged being aware of agency regulations
requiring him to do so. Police officers soon approached appellant and
questioned him regarding the accident, but did not issue him a citation.
Appellant returned to the facility after completing his route, but did
not notify his supervisor or the postmaster of the accident. Upon his
return to work the next day, appellant was notified that he was being
terminated for failure to meet the requirements of his position.
Believing the termination to be discriminatory based upon his race
(black), appellant filed a formal EEO complaint on April 11, 1995.<2>
Appellant denied receiving a 30-day evaluation of his performance.
Further, appellant stated that he did not telephone his supervisor to
report the accident because one of the police officers indicated that
she would contact the agency. Appellant stated that he was unable to
locate his supervisor or the postmaster upon his return to the facility.
Appellant cited another employee (Comparative; white) who had an accident
during her probationary period and was not terminated. The Comparative
testified that she hit a pole while turning into a parking lot, scratching
an agency vehicle. The Comparative did not immediately report the
accident, but waited until she returned from her route to do so.
The Comparative stated that she did not receive any unsatisfactory
ratings during her probationary period and was retained after that time.
The postmaster stated that, although appellant's performance was
unsatisfactory, he was terminated primarily because of the motor vehicle
accident, which he failed to report. The postmaster stated that, unlike
appellant, the Comparative was not at fault. In addition, the postmaster
estimated that the damage to appellant's vehicle was far greater than
that sustained by the vehicle driven by the Comparative.
The agency complied with all procedural and regulatory prerequisites,
and on October 30, 1996, an EEOC Administrative Judge (AJ) issued a
recommended decision finding that appellant had been subjected to race
discrimination. Thereafter, the agency issued a final decision dated
December 17, 1996, rejecting the AJ's recommended decision. It is from
this decision that appellant now appeals.
After a careful review of the record, the Commission finds that the AJ
correctly determined that appellant was subjected to race discrimination
when he was terminated from his Carrier position. The Commission
notes that while the agency disputes the AJ's finding that appellant
established a prima facie case based upon the different treatment
received by the Comparative, appellant needed only to present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. See O'Connor v. Consolidated
Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996). Further, the Commission finds the AJ's
ultimate finding of discrimination to have been reasonable, given the
cited inconsistencies in the postmaster's testimony.
As noted by the AJ, both appellant and the Comparative were involved in
motor vehicle accidents, which they did not immediately report, during
their probationary periods. While the postmaster initially asserted
that the Comparative reported her accident when she was first able to
use a telephone, approximately 15 minutes after the incident, he later
acknowledged that she did not do so until she returned to the facility,
and ultimately testified that he was not certain when the accident was
actually reported. In addition, like the AJ, the Commission finds the
postmaster's explanation that children playing on pieces of a fence
damaged the Comparative's vehicle to be questionable, especially given
the Comparative's testimony that the accident was caused when she hit
a pole. The Commission recognizes that there was some indication that
appellant's performance during probation was not as good as that of
the Comparative. Nevertheless, given the postmaster's assertion that
appellant's termination was primarily based upon the unreported accident,
we find that the AJ properly concluded that the articulated reasons for
the action were a pretext for race discrimination. Accordingly, the
final agency decision is hereby REVERSED, and the Commission finds that
appellant was subjected to race discrimination when he was terminated
from his Part-time Flexible City Carrier position.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The agency shall, within thirty (30) calendar days of the date this
decision becomes final, reinstate appellant to the position of Part-time
Flexible City Carrier, PS-5, or a comparable position effective January 6,
1995.
2. The agency shall determine the appropriate amount of backpay,
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of backpay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of backpay and/or
benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant 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 to determine
whether appellant is entitled to compensatory damages. During the
investigation, the agency shall allow appellant to present evidence in
support of his claim for damages.<3> Thereafter, the agency shall issue
a final decision as to appellant's compensatory damages claim. Appellant
shall cooperate with the agency. The supplemental investigation and
issuance of the final decision must be completed within sixty (60)
calendar days of the date this decision becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at the General Mail Facility, Concord,
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 (H1092)
If appellant 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 THAT THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
NOV 25, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1While appellant testified at the hearing that he hit a hedge near the
driveway, a police report indicates that appellant hit a tree.
2It is noted that, as relief, appellant stated, inter alia, that he was
seeking compensation for mental anguish.
3The Commission's decision in Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993), describes in detail the type of evidence
which should be presented in support of a claim for compensatory damages.