Dennis D. Petrack, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01a00495 (E.E.O.C. Mar. 22, 2000)

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.