0720090016
12-01-2009
David L. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David L. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720090016
Hearing No. 443200600111X
Agency No. 1E554000106
DECISION
Following its November 10, 2008 final order, the agency filed a timely
appeal and complainant filed a timely cross appeal, both of which the
Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal,
the agency argues that the Commission should affirm its rejection of
an EEOC Administrative Judge's finding of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant argues that the Administrative Judge erred
in finding no discrimination with regard to one of the three issues
on appeal, and complainant seeks a higher award of both pecuniary and
non-pecuniary damages.
For the following reasons, the Commission AFFIRMS the agency's final
order in part, and VACATES and REMANDS the agency's final order in part.
ISSUES PRESENTED
Whether complainant was discriminated against on the basis of race
(African American), sex (male), age (49 and 50 years old at the time of
the incidents), disability1 (bilateral tendonitis, neck and shoulder
injury) and in retaliation for engaging in protected activity under
Title VII, the ADEA and the Rehabilitation Act when:
1. On December 14, 2005, complainant was issued a five-day suspension;
2. On May 18, 2006, complainant was issued a ten-day suspension; and
3. In November 2006, management officials sought to transfer complainant
from the Minneapolis Processing & Distribution Center (Minneapolis P&DC)
to Batesville, Mississippi.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Mail Processing Clerk at the agency's Minneapolis P&DC in Minneapolis,
Minnesota. Prior to filing the instant complaint, complainant filed
a formal EEO complaint in March 2005 alleging discrimination when
his transfer request to Marks, Clarksville or Batesville, Mississippi
was denied. In May 2006, an EEOC Administrative Judge (AJ1) issued a
decision finding discrimination based on reprisal when the agency denied
the transfer to Mississippi. AJ1 issued an order directing the agency to
"immediately transfer" complainant to Mississippi. The agency issued
a Final Action rejecting AJ1's finding of discrimination and appealed
AJ1's decision to the Commission2. Complainant cross-appealed, and in
November 2008, the Commission affirmed AJ1's decision, including the
remedies portion. See Anderson v. USPS, EEOC Appeal No. 0120063696
(November 10, 2008) ("Anderson I").
In December 2006, while complainant was awaiting the outcome of Anderson
I, complainant filed a second complaint alleging discrimination on
the bases of race, sex, color, disability, age and reprisal when, on
November 2, 2006, he was notified that his last day at the Minneapolis
facility would be November 17, 2006, and that he would be reassigned
to the Batesville, Mississipi Post Office. The agency dismissed the
complaint for failure to state a claim, noting that the matter was
inextricably intertwined with the previous complaint heard by AJ1.
Complainant appealed, and prior to rendering a decision on Anderson I,
the Commission affirmed the agency decision, noting that the complaint
addressed the implementation of an AJ's order. See Anderson v. USPS, EEOC
Appeal No. 0120071344 (April 20, 2007) ("Anderson II"). Complainant's
Request for Reconsideration was denied. Anderson v. USPS, EEOC Request
No. 0520070546 (June 18, 2007).
In February 2007, again while complainant was still awaiting the
outcome of Anderson 1, complainant filed another complaint alleging
discrimination on the same bases as before, when in November 2006, the
agency again sought to transfer him from Minneapolis to Mississippi.
The agency again dismissed the complaint for failure to state a claim,
complainant again appealed, and once again the Commission affirmed the
agency decision on the grounds that the claim was identical to the claim
addressed in Anderson II and the allegation addressed the implementation
of an AJ's order. See Anderson v USPS, EEOC Appeal No. 0120072158 (July
12, 2007) ("Anderson III"). Complainant's Request for Reconsideration was
again denied. Anderson v. USPS, EEOC Request No. 0520070765 (September 5,
2007)
On April 11, 2006, prior to filing the two complaints that produced
Anderson II & III, complainant filed the instant complaint. In his
formal complaint, however, complainant only raised claim 1, concerning
the five-day suspension. Complainant subsequently amended his complaint
to include claim 2, concerning the ten-day suspension in June 2006.
Following an investigation, complainant requested a hearing and the
complaint went before another AJ (AJ2). Claim 3, the transfer claim that
was addressed in Andersons I, II & III, was not added until the hearing
stage, after complainant filed a Motion to Amend to include claim 3 in
December 2006. The date AJ2 accepted the amendment is not specified in
the record.
AJ2 issued his decision on September 30, 2008 ("Anderson IV"). AJ2 found
no discrimination with regard to claim 1, but found discrimination based
on reprisal with regard to claims 2 and 3. AJ2 ordered the removal
of all records of the ten-day suspension from complainant's records,
an offer to complainant to reinstate him to his former position,
back pay if applicable, and an award of non-pecuniary compensatory
damages in the amount of $20,000.00. The agency subsequently issued
a final order declining to adopt AJ2's finding that complainant proved
that he was subjected to discrimination as alleged. The agency further
appealed AJ2's decision. On appeal, the agency argues that AJ2 erred in
allowing complainant to amend the complaint to include claim 3 because
that claim was not like or related to claims 1 and 2 and because it had
been previously addressed by the Commission. The agency further argues
that AJ2's findings of fact regarding the transfer (claim 3) were not
supported by substantial evidence, that AJ2 erred in finding reprisal
with regard to claim 2, and finally, that AJ2 erred in not permitting
the agency to have a client representative at the hearing.
Complainant, in his cross appeal, argues that AJ2 erred in not finding
discrimination with regard to claim 1. In addition, complainant seeks
front pay in compliance with AJ2's order, dismissal of the agency's
appeal on the grounds that the agency failed to provide interim relief,
$100,000.00 in pecuniary damages, and finally, complainant argues that
the amount of non-pecuniary damages awarded by AJ2 was insufficient to
fully compensate him, and he seeks $300,000.00 instead.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Claim 1
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997).
The agency contends that complainant received the five-day suspension
because management had received a complaint from a female coworker (CW1)
that complainant had tried to touch her. See Report of Investigation
(ROI), Affidavits B & C, Hearing Transcript (HT) p. 171. The record
also contains a copy of CW1's incident report that establishes that in
December 2005, she complained to management that complainant had tried
to touch her. See ROI, Exhibit B.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Complainant denies that the incident occurred as alleged by CW1 and
argues that a statement by another coworker (CW2) proves that nothing
happened. See Complainant's Appellate Brief, p. 3. AJ2 acknowledged that
CW2's statement "casts suspicions on [CW1's] account," AJ2's Decision,
p. 10, but AJ2 further found that the pivotal inquiry is whether or not
management officials "reasonably believed Complainant had engaged in
conduct warranting discipline," id., and found that the agency's actions
were reasonable.
A review of the record shows that CW2 wrote a memo on December 18, 2005,
wherein she appeared to be surprised at CW1's outburst during the incident
in question. See ROI, Exhibit 8. However, CW2's written statement
does not explicitly deny that complainant tried to touch CW1, nor does
it state that CW1 fabricated the incident. See id. CW2's statement,
therefore, does not establish that the agency's action in disciplining
complainant was so unreasonable as to establish pretext. Accordingly,
we find that AJ2's findings are supported by substantial evidence in
this matter and we see no basis to disturb AJ2's decision.
Claim 2
AJ2 found that complainant established a prima facie case of
discrimination and reprisal with regard to claim 2. See AJ2' Decision,
p. 9. Specifically, AJ2 found that complainant is an African American
male who was over 40 at the time of the alleged incident, who had been
engaged in EEO activity sufficiently close enough in time to infer a
nexus, and who was subjected to an adverse action when he was given a
ten-day suspension. Id. AJ2 next found that the agency articulated
a legitimate, nondiscriminatory reason for its action, namely that
complainant was suspended for disobeying his supervisors' direct order
to appear at an EEO deposition. See id. pp. 9, 10. Finally, AJ2 found
that complainant established that the agency's articulated reason for
its action was a pretext for discrimination. Id. Following a review
of the record, the Commission finds that AJ2's decision is supported by
substantial evidence.
On appeal, the agency argues that AJ2 erred when he identified three
similarly situated coworkers who were not given a direct order to appear
at a deposition, or disciplined for failing to appear. See Agency Appeal
Brief, pp. 25-27. The agency contends that there is nothing in the record
to support AJ2's findings on this matter. Specifically the agency argues
that one of the three coworkers identified by AJ2 did not, in fact,
refuse to testify and her testimony is part of the instant complaint.
See id. The agency further presents on appeal an affidavit by a second
of the three coworkers identified by AJ2 who denies that he failed
to appear at a deposition and is therefore not similarly situated with
complainant. See id., Exhibit A. A review of the record, however, shows
that complainant's supervisor on the day in question (RMO1: Caucasian,
male, 48 years old at the time of the incident, no claimed disability),
who administered the discipline, testified that he had never given any
other employee a direct order to appear as a witness at a deposition.
See HT, p. 83-4. We therefore find that AJ2's finding that complainant
was treated differently is supported by substantial evidence and we see
no basis to disturb AJ2's decision on this mater.
Claim 3
Complainant filed a motion to amend to include Claim 3 in December 2006
and the agency filed a motion objecting to the amendment. The record
is silent regarding when AJ2 accepted complainant's motion to amend.
Following a review of the record, we find AJ2 erred in accepting
complainant's motion to amend. As noted above, the transfer claim
was previously addressed by the Commission in Andersons I, II & III.
The matter should not have been accepted as a distinct and new claim
but should have been treated as an issue of compliance with AJ1's order
in Anderson I. We therefore VACATE AJ2's decision with regard to the
finding of reprisal when management sought to transfer complainant to
Mississippi.
Complainant's Claims on Cross Appeal and Remedies
Complainant argues that AJ2 erred in not finding discrimination with
regard to claim 1. As we note above, however, we affirm AJ2's finding
in this regard. In addition, complainant seeks front pay in compliance
with AJ2's order, dismissal of the agency's appeal on the grounds that
the agency failed to provide interim relief, $100,000.00 in pecuniary
damages, and finally, complainant argues that the award of $20,000.00
in non-pecuniary damages awarded by AJ2 was insufficient and he seeks
$300,000.00 instead. As regards pecuniary relief, we note that AJ2
did not order pecuniary relief and on appeal, complainant has not
shown entitlement to such relief. Accordingly, complainant's claim
for $100,000.00 in pecuniary relief is denied. As regards front pay and
non-pecuniary compensatory damages, we note the front pay award relates to
claim 3, which as we note above, should more appropriately be addressed
as a compliance matter instead of a new claim. Accordingly the claim
for front pay is denied.
As regards the award of non-pecuniary compensatory damages, AJ2 awarded
$20,000.00 based on finding discrimination with regard to both claims
2 and 3. As noted above, we are affirming the finding as regards claim
2 but vacating the finding as regards claim 3. Complainant, therefore,
is only entitled to damages for the harm incurred when he was issued a
ten-day suspension and not for any harm incurred from management seeking
to transfer him to Mississippi. While AJ2 did not specify how much
of the total award was to compensate complainant for the harm incurred
from claim 2 and how much was for claim 3, AJ2 noted that complainant
and his family incurred "much stress, anxiety, and depression as the
[sic] result of the agency's actions. Complainant has been humiliated
and embarrassed. Complainant has experienced crying spells . . .
[and] has suffered damage to his credit rating." AJ2's Decision, p. 12.
Complainant's post hearing brief states that complainant and his wife
"suffered mightily at the hand of [agency] miscreants. They suffered
embarrassment at the lockout, the false accusations, and the loss of
income . . . [Complainant and his family] suffered embarrassment at
having to ask relatives for money in order to just survive in their home.
They almost lost their home. They suffered the pain of not being able to
get medical and dental care. They suffered the loss of their normal life."
From this statement, and from AJ2's Decision, it appears that the majority
of the $20,000.00 awarded by AJ2 was designed to compensate complainant
for the harm incurred from claim 3, the transfer to Mississippi, and not
for claim 2, the ten-day suspension. We note in this regard that the
ten-day suspension did not involve a long-term loss of pay, the lockout,
or a loss of medical or dental care.
The Commission finds that an award of $5,000.00 in non-pecuniary
compensatory damages is sufficient to compensate complainant for the
ten-day suspension. The Commission further finds that an award of this
amount is supported by substantial evidence and is consistent with the
Commission's awards in similar cases. See e.g., Reddish v. United
States Postal Service, EEOC Appeal No. 0720070068 (April 28, 2009)
($4000.00 awarded for finding of reprisal resulting in embarrassment,
humiliation, distress, headaches and elevated blood pressure); Spencer
v. Department of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003)
($5,000.00 awarded for complainant's complaints of dejection, stress,
and emotional pain); Brooks v. United States Postal Service, EEOC Appeal
No. 01996915 (October 12, 2001) ($6,000.00 in non-pecuniary damages
awarded for depression, anger, aggravation of high blood pressure,
and adverse effects on family life).
Client Representative
The agency argues that AJ2 erred in not permitting the agency to have a
client representative present in the hearing room to listen to all of the
witnesses. We note that Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000). We further note
that the agency's attorney was able to be present in the hearing room
to listen to all of the witnesses. Accordingly, we discern no abuse of
discretion on the part of AJ2.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD
in part, REVERSE the FAD in part, and VACATE AJ2's Decision in part.
The agency is directed to submit the complaint file for further processing
in accordance with this decision and the ORDER below.
ORDER
1. The agency shall, within sixty (60) days of the date this decision
becomes final, issue a check to complainant in the amount of $5000.00 in
non-pecuniary compensatory damages for the finding of unlawful retaliation
in claim 2.
2. Concerning claim 3 (transfer issue), the agency is directed to
submit a copy of the related complaint file to the Hearings Unit of the
Milwaukee District Office within fifteen (15) calendar days of the date
this decision becomes final. Since this is a matter of compliance with
the decision of AJ1, who issued Anderson I in May 2006, addressing the
transfer to Mississippi under EEOC Case No.260-2006-00010X, the file
should be submitted to the same AJ, if possible. If AJ1 is no longer
with the EEOC's Milwaukee office, the file should be submitted to any
other AJ from the Milwaukee District Office except AJ2, who issued
Anderson IV, under EEOC Case No. 443-2006-00111X. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the claim deciding whether or not the agency is in compliance with the
decision in Anderson I. Thereafter, the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 1, 2009
__________________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
2 The agency subsequently withdrew its appeal of AJ1's decision prior
to the Commission rendering its decision.
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0720090016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720090016