01a00495
03-22-2000
Dennis D. Petrack, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis D. Petrack, )
Complainant, )
)
v. ) Appeal No. 01A00495
) Agency No. 4C-2467-93
William J. Henderson, ) Hearing No. 220-99-5190X
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
Complainant filed the instant appeal from the agency's September 22, 1999
decision finding that the agency did not discriminate against complainant
based on complainant's sex (male), national origin (Irish/Spanish),
and in retaliation for prior protected activity.<1> The instant matter
involves the following two claims (using the agency numbering system):<2>
On June 25, 1993, complainant submitted a doctor's note requesting a
change of tour, but was denied the change request.
From April 3 - 30, 1993, complainant was required to work twenty-six
days straight without a day off.
A hearing was held before an EEOC Administrative Judge. An administrative
judge issued a decision dated July 27, 1999 finding that complainant
was discriminated against in claim 3 in retaliation for prior protected
activity. The administrative judge also found that complainant was not
discriminated against on the basis of sex and national origin in claim 3
and that complainant was not discriminated against as alleged in claim 4.
The agency found in its September 22, 1999 decision that complainant
was not discriminated against on any alleged bases in claims 3 and 4.
Claim 3 - Retaliation
The administrative judge found that the responsible agency official who
denied the change of tour was the Plant Manager. The administrative judge
found that complainant had claimed in his request for EEO counseling
that the Plant Manager was aware of complainant's prior EEO activity.
The administrative judge found that the Plant Manager was not asked
specifically if he was aware of complainant's prior protected activity at
the time of the June 25, 1993 physician's request for a change in tour.
The administrative judge concluded:
Therefore, for purposes of analysis, it is assumed that [the
Plant Manager] was aware of the Complainant's prior EEO activity.
The evidence further shows that his request for a tour change was not
granted contemporaneously with his EEO participation such that one can
infer a retaliatory motive on the part of the Agency.
. . . .
There was no specific reason provided through documentary or testimonial
evidence for the denial of the Complainant's request. The failure to
articulate a legitimate nondiscriminatory reason deprives the Complainant
of a full and fair opportunity to demonstrate pretext. Merely stating
that there is no response or not responding at all fails to meet the
Agency's burden of production.
The Commission has explained the following standard of review to be used
in appeals in which a hearing has been held before an EEOC Administrative
Judge:
Pursuant to 64 Fed. Reg. 37,644, 37659 (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). . . . The AJ's [Administrative Judge's]
legal conclusions are reviewed de novo.
Maietta v. United States Postal Serv., EEOC Request No. 05990224 (Feb. 3,
2000).
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).
The Commission finds that there is substantial evidence in the record to
support the administrative judge's findings that: (1) the Plant Manager
denied complainant's request for a tour change; and (2) at the time
of the denial of the request for a tour change, the Plant Manager had
knowledge of complainant's prior EEO activity. The Commission agrees
with the administrative judge that the agency failed to articulate a
legitimate, non-discriminatory reason for denying complainant's request
for a tour change. Therefore, we find that the administrative judge
correctly determined that complainant was discriminated against in claim
3 in retaliation for his prior protected activity and we reverse the
agency's decision finding no discrimination.
As a remedy, the administrative judge recommended that complainant
be provided: (1) the tour change as requested by his physician; (2)
$5,000.00 in compensatory damages (all of which are non-pecuniary), and;
(3) reasonable attorney's fees. The agency has not specifically contested
any of the remedy recommended by the administrative judge. Complainant
argues that he should be awarded more in compensatory damages. The
Commission's review of the record shows that the administrative judge's
remedy is appropriate and that the award of $5,000.00 in compensatory
is sufficient and appropriate for complainant's non-pecuniary damages.
Claim 3 - Sex and National Origin; Claim 4
Complainant states that he is not challenging the agency's finding of
no discrimination on the bases of sex and national origin in claim 3
and the agency's finding of no discrimination on any bases in claim 4.
To the extent that complainant is raising such a challenge, we find that
the administrative judge properly determined that complainant failed to
show by a preponderance of the evidence that: (1) he was discriminated
against in claim 3 on the bases of his sex or national origin; or that
(2) he was discriminated against in claim 4 on the bases of his sex or
national origin or in retaliation for his prior protected activity.
The agency's decision finding no discrimination on the basis of
retaliation for prior protected activity in claim 3 is REVERSED and
we REMAND the matter for further processing in accordance with this
decision and applicable regulations. The agency's decision finding no
discrimination on the bases of sex and national origin in claim 3 and
on any alleged bases in claim 4 is AFFIRMED.
ORDER
The agency shall comply with the administrative judge's July 27, 1999
remedial relief by providing the following:
Within 30 days of the date this decision becomes final the agency shall
provide complainant the tour change as requested by his physician.
Within 30 days of the date this decision becomes final the agency shall
pay complainant $5,000.00 in compensatory damages.
Pay complainant reasonable attorney's fees as appropriate as set forth
in the Attorney's Fees order herein.
Submit evidence showing that the agency has complied with provisions
1 and 2 of this Order, including a document reflecting complainant's
schedule change and a copy of the check sent to complainant for the
compensatory damages, to the Compliance Officer referenced herein.
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/she 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 (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 (T1199)
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:
March 22, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
Equal Employment Assistant
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.
2The instant matter was originally consolidated with other matters by
the agency. The consolidation action was later rescinded.