Calvin N. Wolfe, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 2, 2000
01990905 (E.E.O.C. May. 2, 2000)

01990905

05-02-2000

Calvin N. Wolfe, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Calvin N. Wolfe v. United States Postal Service

01990905

May 2, 2000

Calvin N. Wolfe, )

Complainant, )

) Appeal No. 01990905

) Agency No. 1E-981-1069-96

) Hearing No. 380-98-8244X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

On October 30, 1998, Calvin N. Wolfe (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated October 21, 1998, concerning his

complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et

seq.<1> The Commission hereby accepts the appeal in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly reduced the amount

of compensatory damages awarded by the Administrative Judge.

BACKGROUND

Complainant was employed by the agency as a Mailhandler, PS-04, at the

agency's Processing and Distribution Center in Seattle, Washington.

Complainant initiated EEO Counseling on September 4, 1996. He filed

a formal complaint on October 9, 1996, alleging discrimination on the

bases of race (African American) and color (black) when: 1) on August

9, 1996, his request for leave was denied; 2) on August 11, 1996, he

was admonished about work conduct; and 3) on August 21, 1996, he was

invited to a meeting with two supervisors to address training concerns.

The agency accepted the complaint for investigation and processing.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Following a hearing on September 3, 1998,

the AJ issued a decision finding discrimination on issue 1, but finding

no discrimination with respect to issues 2 and 3.

The AJ concluded that complainant established a prima facie case of

race and color discrimination on issue 1 because he had established

that a similarly situated employee not of his protected class (white)

(CO-1) had requested leave for the same day as complainant and her

request was granted. The AJ then concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions, namely, that

CO-1 had requested leave long before complainant's request, and all

the employees were needed that day because of the busy volume of mail.

The AJ then concluded that complainant established that the agency's

reasons were a pretext for discrimination. In reaching his conclusion,

the AJ found that CO-1 had actually asked for leave after complainant had,

and that the agency misrepresented when CO-1 had placed her request.

The agency claimed that CO-1's original leave request proving she had

requested it prior to complainant had been misplaced. The testimony of

CO-1 at the hearing, however, was that she had requested it the day after

complainant had placed his request, and she denied asking for leave at

an earlier date.

As a remedy, the AJ ordered: that the agency take no retaliatory action

against the complainant, his representative, or his witnesses for having

filed and prosecuted the discrimination complaint; that the complainant

be paid $2,500.00 in compensatory damages for emotional distress; that the

agency insure that in the future the complainant and other black employees

under the relevant supervisors are not subjected to the same or similar

acts of discrimination; and that the agency post an appropriate notice.

The AJ based his compensatory damages finding on the stress experienced

by complainant, the "insult of race discrimination and the embarrassment

and humiliation for seeing a white person get favored while he was denied

and in front of his co-workers," and the medical attention complainant

sought subsequent to the incidents (weekly doctor visits for a four

month period).

The agency's final decision accepted the AJ's findings with respect to his

conclusion that discrimination had been established for issue 1, but not

for issues 2 and 3. It stated that it would implement the relief ordered

by the AJ but modified it, rejecting the AJ's decision with regard to the

amount of compensatory damages awarded, and reducing the damages from

$2,500.00 to $350.00. The agency argued that complainant had provided

minimal testimony on the emotional effect the denial of leave had on him,

and that the bulk of his emotional distress was caused by issues 2 and 3,

on which the AJ found no discrimination. This appeal followed.

ANALYSIS AND FINDINGS

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 regarding whether or not

discriminatory intent existed is a factual finding. See Pullman-Standard

Co. v. Swint, 456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb the AJ's

decision. We also find no basis to disturb the amount of compensatory

damages awarded by the AJ, and find that the amount was reasonable based

on the evidence contained in the record, and based on the AJ's evaluation

of the complainant's demeanor and credibility at the hearing. Therefore,

after a careful review of the record, including complainant's arguments on

appeal, the agency's response, and arguments and evidence not specifically

discussed in this decision, the Commission REVERSES the agency's final

agency decision and remands the matter to the agency to take remedial

actions in accordance with this decision and the ORDER below.

CONCLUSION

Accordingly, the decision of the agency is REVERSED and REMANDED for

further processing in accordance with this decision and the proper

regulations.

ORDER

The agency is hereby ordered to issue a check to complaint in the amount

of $2,500.00, less any amounts already paid, plus interest, within

60 days of the date of this decision. A copy of the check issued to

complainant must be sent to the Compliance Officer as referenced below.

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 (M0300)

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); 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 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:

_05-02-00_________ __________________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1 On 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.