01972692
03-22-2000
David J Maez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/West Region), Agency.
David J Maez v. United States Postal Service
01972692
March 22, 2000
David J Maez, )
Complainant, )
) Appeal No. 01972692
v. ) Agency No. 4-E-852-1057-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/West Region), )
Agency. )
____________________________________)
DECISION
On January 21, 1997, David J. Maez (complainant) timely initiated an
appeal to the Equal Employment Opportunity Commission (Commission)
from the final decision of the United States Postal Service (agency)
concerning his allegation that the agency violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., the Age
Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �
621 et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<2>
Complainant filed a formal EEO complaint on March 8, 1994, in which he
alleged that agency officials discriminated against him on the bases
of his race (Hispanic), color (brown), age (46), reprisal (for prior
EEO activity) and physical disability (hearing impairment requiring
the use of hearing aids)<3> when he was removed from his position
as a City Carrier in the Tucson, Arizona, Post Office. Although the
agency initially dismissed the complaint for untimeliness, complainant
appealed to this Commission, and the agency's dismissal was vacated.
Maez v. United States Postal Service, EEOC Appeal No. 01943850 (December
28, 1994). Pursuant to the Commission's order, the agency then accepted
the complaint and conducted an investigation.
The investigation revealed that, in August 1993, complainant was hired
by the Tucson Post Office as a Part-Time Flexible (PTF) City Carrier.
As a prerequisite to assuming this position, complainant was required to
pass the agency's 2870 Driver's Road Test ("the road test") on a half-ton
right-hand drive vehicle. The record indicates that complainant took
the test on September 23, 1993 and was subsequently informed that he
had failed. As a result, complainant was removed from his PTF City
Carrier position.
Upon receipt of the investigative report on his EEO complaint challenging
his removal, complainant waived his right to a hearing and requested a
final agency decision on the record. On September 5, 1995, the agency
issued its final decision, concluding no discrimination had occurred
on any of the bases alleged. Complainant again appealed the agency's
decision to the Commission. The Commission vacated the agency's decision,
finding the agency had failed to develop "a complete and impartial
factual record," and remanded the case for a supplemental investigation.
Maez v. United States Postal Service, EEOC Appeal No. 01960391 (September
12, 1996). In its decision, the Commission noted that the "primary
problem" with the initial investigation was the agency's failure to
provide a copy of the results of complainant's road test to corroborate
its articulated reason for complainant's termination. In addition,
the Commission held that the statements provided by the Instructor, who
administered the road test to complainant, were not entirely clear as to
how many errors complainant committed on the test and what the testing
standards were.<4> Moreover, the Commission found that the agency should
have provided the results of the road tests taken by seven comparative
employees named by complainant during the initial investigation.
Pursuant to the Commission's order, the agency conducted a supplemental
investigation and, on December 26, 1996, issued a final decision again
concluding no discrimination had occurred on any of the bases alleged.
It is from this decision that complainant now appeals.
During the supplemental investigation, the Instructor prepared an
additional affidavit in which he averred that complainant failed because
he committed fourteen errors during his test: seven errors for failing
to center the vehicle; three errors for not checking in his rearview
mirror; one error for exceeding the posted speed limit; two errors for
exceeding the posted speed limit in a school zone; and one error for
failing to resume the posted speed limit after leaving the school zone.
However, the Instructor stated that agency regulations prohibited him
from producing complainant's actual test or the tests of the comparison
employees. He did say that, without disclosing the actual scores received
by the comparatives, that they each committed less than five errors.
In addition, the agency provided the investigator with a blank copy of the
test and the written guidelines and procedures for conducting the test.
EEOC regulations provide that where a responding agency fails,
without good cause, to fully comply with requests for documents,
record, comparative data, statistics, affidavits or the attendance of
witnesses, the Commission may draw an "adverse inference" that the
requested information would have reflected unfavorably on the party
refusing to provide the information. 29 C.F.R. � 1614.108(c). In this
case, the agency has refused to comply with the Commission's order to
produce complainant's actual road test, as well as the actual tests and
scores of the seven comparative employees. Agency witnesses mentioned,
in cursory fashion, that this refusal was based on an agency regulation
which provides that the agency does not have to provide failing examinees
with a copy of their test. The Commission finds that the agency has not
established the requisite "good cause" for its refusal to comply with
the Commission's order to produce the actual documents pertaining to
the road tests given complainant and the seven comparative employees.
Therefore, pursuant to 29 C.F.R. � 1614.108(c), the Commission draws
the adverse inference that complainant's road test and the road tests
of the seven comparatives would not have supported the testimony of the
Instructor, who averred that complainant failed because he exceeded the
allowable five error limit, while the comparatives passed the road test
because they did not.
In his affidavit taken during the initial investigation, complainant
averred that the Instructor predicted in advance to other agency officials
that complainant would fail the test, that the Instructor appeared shocked
when he noticed complainant's hearing aids, and that the Instructor only
informed him of three errors during, and immediately after, the road test.
Complainant stated that, at no time, was he shown the actual results of
his test. Complainant asserted that he was treated differently than the
seven other employees who took the road test on this same day. He also
stated that prior to his employment with the agency, he had extensive
postal experience in the military, having served as Postmaster in both
the Philippines and Turkey, and had significant experience driving one
and half-ton trucks, six-by-sixes, jeeps and metro vans. The Commission
finds that these unrebutted statements by complainant, in combination with
the adverse inference drawn against the agency for its failure to comply
with the Commission's order, is sufficient to meet complainant's burden of
proving, by a preponderance of the evidence, that the agency's articulated
reason for his failure on the road test, and resulting termination, was
untrue and a pretext masking the agency's true discriminatory motivation.
The Commission, therefore, concludes that, but for this discrimination,
complainant would have passed the road test and would have retained his
PTF City Carrier position with the agency.
Based upon a careful review of the record, and for the foregoing reasons,
the agency's decision finding no discrimination is REVERSED, and the
agency is directed to comply with the terms of the following ORDER.
ORDER
The agency is ORDERED to take the following remedial action:
(A) 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 retroactively reinstate complainant to the
position he held with the agency at the time of his removal. Complainant
shall be provided with back pay and benefits, as indicated below.
(B) The agency shall determine the appropriate amount of backpay,
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501(c), no later than sixty (60) calendar days after the date this
decision becomes final. If complainant declines to accept a position
with agency, the backpay period shall end with the date he declines
the offer of reinstatement. The complainant 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 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 set forth below.
(C) 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.
(D) Training shall be provided to the managers responsible for the
agency's actions in this matter on the obligations and duties imposed
by the anti-discrimination statutes enforced by the Commission.
(E) The agency shall post at Tucson, Arizona, 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 set forth below within ten (10) calendar days of the
expiration of the posting period.
(F) 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.
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 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).
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:
March 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 0f 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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 Tucson, Arizona Post Office has been found to have discriminated
against the individual affected by the Commission's finding on the bases
of his race, national origin, age and in reprisal for prior protected
activity when he was removed from the facility's employ. The Commission
ordered the agency to reinstate the individual; to award him backpay
and all other benefits due; to pay proven compensatory damages and to
provide training to the responsible management officials and employees.
The Tucson, Arizona 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 Tucson, Arizona 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
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.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
3 It is not necessary for the Commission to address whether or not
complainant meets the regulatory definition of a "qualified individual
with a disability" at 29 C.F.R. � 1630.2(m) because we find that since he
has established a violation of Title VII and the ADEA, under the facts
of this case, he would not be entitled to any additional remedies under
the Rehabilitation Act.
4 The Instructor had explained that an examinee could commit no more
than five "errors" during the road test in order to pass.