01971974
02-11-2000
Boyd L. Leech, Complainant, v. 4E-870-1041-95 William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western), Agency.
Boyd L. Leech, )
Complainant, )
) Appeal No. 01971974
v. ) Agency Nos. 4E-870-1021-94
) 4E-870-1064-94 )
4E-870-1041-95 )
William J. Henderson, ) Hearing Nos. 350-94-8272X
Postmaster General, ) 350-94-8093X
United States Postal Service, ) 350-94-8245X
(Pacific/Western), )
Agency. )
)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission challenging the
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 Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq; and �501
of the Rehabilitation Act of 1973, as amended, U.S.C. �791 et seq. <1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
ISSUES PRESENTED
The issue on appeal is whether the agency discriminated against
complainant on the bases of his race (Caucasian), age (D.O.B. 5/1/38),
physical disability (back condition) and reprisal (prior EEO activity),
when the following occurred: (1) he was denied a transfer to the position
of Mail Processing Equipment (MPE) mechanic, in the maintenance craft;
(2) (a) notes about complainant's work performance were left lying out in
the open for everyone to view; (b) complainant's bid job, Mail Handler
2, was taken away from him; and (3) management failed to provide him a
reasonable accommodation within his medical restrictions.
BACKGROUND
On January 4, 1994, May 23, 1994, and January 11, 1995, complainant filed
formal complaints alleging discrimination as stated above. The three
complaints were consolidated for hearing purposes. Following an EEOC
administrative hearing on August 8, 9, and September 19, 1995, the
administrative judge (AJ) issued a recommended decision finding that
complainant failed to prove that he was discriminated against on any
bases regarding issues 1, 2a, and 3 above. However, the AJ concluded
that complainant established by a preponderance of the evidence that
he was discriminated against in retaliation for his prior EEO activity
regarding issue 2(b) when agency officials denied his successful bid
for the Mail Handler 2 position.
In support of her finding of discrimination, the AJ noted that Complainant
successfully bid for the Mail Handler 2 position. Complainant was working
under medical limitations at the time, therefore, the agency required
a physician's statement regarding complainant's ability to perform the
duties of the position. After, complainant's physician stated that
complainant could not perform the duties of the position within six
months, the agency withdrew its offer for the position. Considering
the facts of record, and the testimony provided at the hearing, the
AJ found no evidence of age or national origin<2> discrimination.<3>
The AJ further determined that complainant established an inference
of discrimination on the basis of reprisal. She found that the
agency's request for medical information was motivated, in part, by
the responsible official's desire to retaliate against complainant
for his participation in the EEO process. In support of her finding,
the AJ noted that a similarly situated employee was not required to
provide medical information. In addition, the AJ found the credible
testimony of a union official stating that the Postmaster threw several of
complainant's grievances in the trash and commented disparagingly about
complainant's EEO activities was compelling circumstantial evidence of
prejudice against complainant and the EEO process. The AJ acknowledged
that it was apparent that the Postmaster and complainant's immediate
supervisor disliked complainant. She further acknowledged that in
light of the labor-management problems that existed at the Las Cruces
Post Office which transcended the instant dispute, it was difficult to
ascertain whether and how much of the agency officials' animosity toward
complainant was due to complainant's personality and or union activity,
rather than unlawful discrimination.
On December 3, 1996, the agency issued a final agency decision (FAD)
adopting the AJ's findings of no discrimination and rejecting the AJ's
finding of reprisal discrimination. The agency concluded that the fact
that complainant was evaluated by a physician who found complainant
would be unable to perform the duties of the Mail Handler 2 position
within six months was a legitimate, nondiscriminatory reason for denying
complainant his bid job. The agency further explained that the request
for medical documentation is required by the Collective Bargaining
Agreement (CBA), thus, the agency was obligated to request such medical
documentation. Finally, the agency disagreed with the AJ's conclusion that
the request for medical information was motivated by a desire to retaliate
against complainant because on his involvement with the EEO process.
ANALYSIS AND FINDINGS
After a careful review of the record in its entirety, including the
hearing transcripts, relevant exhibits, the AJ's recommended decision,
the FAD and the parties statements on appeal, the Commission concludes
that the AJ's decision accurately sets forth the relevant facts giving
rise to the complaint and the law applicable to the case. Therefore, we
adopt the AJ's finding as our own. In so doing, we note the following.
The AJ found that the applicable CBA required that, if requested to,
a modified duty employee, must show that she or he could perform the
duties of a position within six months. The AJ further found that the
requests for medical documentation are discretionary and not mandatory as
the agency implied. Therefore, we find appropriate the AJ's finding that
the agency's exercise of its discretion in requesting such documentation
was discriminatory. The Commission further acknowledges complainant's
many contentions on appeal and finds that they were adequately addressed
by the AJ's recommended decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent did
or did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
We note that other than his bare assertions, complainant produced no
evidence, other than that which was presented at the hearing in support
of his claim for physical disability discrimination. Therefore, we
discern no reason to disturb the AJ's finding of no discrimination
with regard to complainant's claim that he was discriminated against
when: (1) he was denied a transfer to the position of Mail Processing
Equipment (MPE) mechanic, in the maintenance craft; (2) (a) notes about
complainant's work performance were left lying out in the open for
everyone to view; and (3) management failed to provide him a reasonable
accommodation within his medical restrictions. However, we find, as
did the AJ, that complainant was discriminated against on the basis of
reprisal when his bid job, Mail Handler 2, was denied.
As a final issue, we note that on appeal complainant requests compensatory
damages as a remedy for the agency's discriminatory actions. Section
102(a) of the Civil Rights Act of 1991 (CRA 1991), 105 Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. �1981A, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of Title VII, of the Civil Rights act of 1964
as amended. EEOC Notice No. N 915.002 at 8 (July 14, 1992); see also
Jackson v. U.S. Postal Service, EEOC Appeal No. 0192399 (November 12,
1992), request for reconsideration denied, EEOC Request No. 05930306
(February 1, 1993); Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960518 (April 27, 1998); and Feris v. EPA, EEOC
Appeal No. 01983167, (September 18, 1998). Section 1981A (b)(2) indicates
that compensatory damages do not include back pay, interest, on back pay,
or any other type of equitable relief authorized by Title VII.
We further note that the AJ did not address complainant's entitlement to
such damages in her recommendations for corrective action. Therefore,
we will remand this issue to the hearings unit to determine complainant's
entitlement to compensatory damages as a result of the agency's denial
of complainant's bid position of Mail Handler 2.
CONCLUSION
In accordance with the above findings, the final agency decision is
AFFIRMED in part and REVERSED in part. The agency shall comply with
the order below.
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 offer complainant reinstatement to his
bid position of Mail Handler 2, tour one, at the Las Cruces Post Office
or a substantially similar position if that one is not available.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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. The 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 the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The 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."
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
(2)The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the appropriate EEOC field office.
Thereafter, the administrative judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue
a final action in accordance with 29 C.F.R. �1614.110 within forty (40)
days of receipt of the administrative judge's decision. The agency shall
submit copies of the decision of the Administrative Judge and the final
agency action to the Compliance Officer at the address set forth below.
(3) The agency shall post copies of the attached notice at the Las Cruces
Post Office, Las Cruces, New Mexico. 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.
(4) The agency shall provide training in the obligations and duties
imposed by Title VII to the agency officials responsible for the instant
action.
(5) 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.
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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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:
February 11, 2000
DATE Carlton M. Hadden
Acting Director, Office of Federal
Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
Date
__________________________
Equal Employment Assistant
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 Act of 1964, as amended,
42 U.S.C. � 2000e et al. has occurred at this facility.
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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service, Las Cruces Post Office, Las Cruces,
New Mexico, 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, Las Cruces Post Office, Las Cruces,
New Mexico, has remedied the employee affected by the Commission's
finding by placing him in Mail Handler 2 or similar position, back pay
and appropriate benefits, and training in the obligations and duties
imposed by the Title VII for the agency officials responsible for the
instant action. United States Postal Service, Las Cruces Post Office,
Las Cruces, New Mexico, 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.
The United States Postal Service, Las Cruces Post Office, Las Cruces,
New Mexico, 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:
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 We note that the AJ from the outset of her decision modified
complainant's allegations to reflect national origin discrimination
instead of race discrimination as she felt this change better reflected
the complainant's intentions.
3 We note that the AJ made no specific finding regarding whether
complainant established a prima facie case of disability discrimination
regarding this issue, however, from the outset of her decision the AJ
concluded that complainant was not a qualified person with a disability
as defined by the Rehabilitation Act. Therefore, complainant could
not have established a prima facie case based on physcial disability
regarding any issue absent this essential showing.