Darlene Bunton, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 19, 2005
01a41740 (E.E.O.C. Jul. 19, 2005)

01a41740

07-19-2005

Darlene Bunton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Darlene Bunton v. United States Postal Service

01A41740

July 19, 2005

.

Darlene Bunton,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A41740

Agency No. 1C-443-0037-00

Hearing No. 220-A1-5193X

DECISION

Complainant filed an appeal from the agency's final action concerning

her equal employment opportunity (EEO) complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.

The agency's final action implemented a default judgment issued by

an EEOC Administrative Judge (AJ) against the agency, due to it its

failure to respond to complainant's discovery requests and the AJ's

orders. The agency agreed to effect the remedies ordered by the AJ.

The complainant, however, seeks to have some of the remedies altered.

The sole issue before the Commission in this appeal is the adequacy of

the remedies. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

During the relevant time, complainant was employed as a Casual Clerk at

the Toledo Processing and Distribution Center, in Toledo, Ohio. On April

20, 2000, complainant filed a formal EEO complaint claiming that she

was the victim of unlawful employment discrimination on the bases of sex

and disability, when she was harassed by a co-worker and later terminated.

Following an investigation, complainant received a copy of the

investigative report and requested a hearing before an AJ.

On September 25, 2003, the AJ issued a default judgment for complainant.

The AJ noted that the agency failed to respond to complainant's discovery

request; and that the AJ thereafter granted complainant's Motion to Compel

discovery, to which the agency again failed to respond. The AJ further

noted that on October 15, 2001 and January 20, 2002, complainant filed

Motions for Sanctions, without a response by the agency. Consequently, on

July 24, 2002, the AJ issued an order granting the Motion for Sanctions,

which the AJ indicated �included the agency's admissions� to the claims

raised in the instant complaint.

On June 12, 2003, a hearing was held regarding complainant's claim of

compensatory damages and attorney's fees and costs.

On September 25, 2003, the AJ issued a document identified as �Default

Judgment/Compensatory Damage Award/Attorney Fees and Costs Award.�

Therein, the AJ awarded complainant the following remedies:

(1) Reinstatement to the position of casual clerk;

(2) Back pay calculated from the date of her termination to the date

her casual appointment was to have expired;

(3) Any other employment benefits lost as a result of the agency's

action;

(4) The agency to post at its Toledo, Ohio facility copies of the

attached Notice in accordance with 29 C.F.R. � 1614.501 (a)(1) after

being signed by the Agency within thirty calendar days of the date of

this decision, which shall remain posted for sixty consecutive days,

in conspicuous locations, including all locations where notices to the

employees are customarily posted. The agency shall take reasonable

steps to ensure that said notices are not altered, defaced or obscured

by other materials.

The AJ also awarded attorney's fees and costs; $5,000.00 in non-pecuniary

damages; and $45.00 in pecuniary damages.

On November 4, 2003, the agency issued a final action implementing the

AJ's default judgment. The agency stated it would effect the actions

as ordered by the AJ.

Nonetheless, complainant filed the instant appeal. Complainant requests

that the Commission provide clarification and adjust some of the remedies

ordered. Regarding the remedy of reinstatement, complainant requests

reinstatement to a �casual clerk on tour,� a position she indicates that

she held when she left the agency.

Complainant further requests that the reinstatement be in a location

away from the identified harassing co-worker.

Finally, regarding the award of non-pecuniary ($5,000.00) and

pecuniary ($45.00) damages, complainant seeks to have them classified

as damages based on �personal physical injuries� or �physical sickness�.

Complainant states that if the damages were so identified, the award would

not be considered part of her gross income and subjected to income tax.

Because the agency admitted that it discriminated against complainant,

it is required to make her "whole" by restoring her to a position where

she would have been were it not for its unlawful acts.

Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle

Paper Co. v. Moody, 422 U.S. 405, 418 (1975); Wrigley v. United States

Postal Service, EEOC Petition No. 04950005 (February 15, 1996).

First, as noted above, complainant requests changes to the AJ's order

of reinstatement to the position of casual clerk, by being placed into

a position as a �casual clerk on tour,� rather than a �casual clerk�

as specified by the AJ. Complainant does not describe the difference

between the two job titles, nor explain why she should be awarded �casual

clerk on tour.� Consequently, we do not find that the record warrants

such an alteration to the AJ's order.

Second, complainant seeks to have the harasser moved to a different

location. Complainant claimed that her co-worker hit her on the butt

with his cane at least three times; pulled her blouse; sat in the chair

next to complainant where her boyfriend had been sitting; walked around

and stopped in front of complainant's case three times in one day; yelled

loudly �all clerks work, fuck you� when complainant passed him on one day;

and on a separate occasion, was caught hiding behind equipment, watching

complainant and shouted �fuck you� loudly. Appropriate relief in cases

of harassment may include taking steps to ensure that the perpetrator of

harassment is no longer assigned to a common workplace with the victim.

See Guerra v. USPS, EEOC Appeal No. 01965639 (June 19, 1997). Because the

AJ's default judgment included the agency's admissions to complainant's

claims, we find that the events justify modifying the AJ's ordered

relief to ensure that the harasser has no contact with complainant

during working hours. Moreover, we determine that the relief should

also include training of the harasser as more fully discussed below.

Finally, the Commission declines complainant's request for the Commission

to classify the monetary award of damages as �personal physical injuries�

or as �physical sickness� because if the damages were so identified, the

award would not be construed as part of complainant's gross incomes and

would not therefore be subject to federal income tax. The Commission

determines that it is beyond its purview to categorize this award in

terms of its potential federal income tax ramifications.

Accordingly, the finding of discrimination is AFFIRMED and the relief

ordered is hereby MODIFIED.

ORDER

The agency is ordered to provide complainant with the following relief,

to the extent that it has not already done so:

(1) Reinstatement to the position of casual clerk;

(2) Back pay calculated from the date of her termination to the date

her casual appointment was to have expired;

(3) Any other employment benefits lost as a result of the agency's

action;

(4) The agency to post at its Toledo, Ohio facility copies of the

attached Notice in accordance with 29 C.F.R. � 1614.501 (a)(1) after

being signed by the Agency within thirty calendar days of the date of

this decision, which shall remain posted for sixty consecutive days,

in conspicuous locations, including all locations where notices to the

employees are customarily posted. The agency shall take reasonable

steps to ensure that said notices are not altered, defaced or obscured

by other materials;

(5) Pay attorneys fees and costs in the amount of $27,664.80; and

(6) Pay $5,000.00 in non-pecuniary damages and $45.00 in pecuniary

damages.

Additionally the Commission includes the following remedies:,

(7) In the event that the identified harasser remains in the agency's

employ, the agency shall take measures to assure that the identified

harasser shall not be permitted to work in the same workplace as

complainant, at the same time as complainant; and

(8) In the event that the identified harasser remains an agency employee,

the agency shall provide EEO sensitivity training with regard to Title

VII and harassment.

POSTING ORDER (G0900)

The agency is ordered to post at its Toledo Processing and Distribution

Center, in Toledo, Ohio, 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.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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

July 19, 2005

__________________

Date