Devuono Hunter, Sr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a00241 (E.E.O.C. Jul. 6, 2000)

01a00241

07-06-2000

Devuono Hunter, Sr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Headquarters), Agency.


Devuono Hunter, Sr. v. United States Postal Service

01A00241

July 6, 2000

Devuono Hunter, Sr., )

Complainant, )

) Appeal No. 01A00241

v. ) Agency No. HI-0074-96

William J. Henderson, ) Hearing No. 170-98-8068X

Postmaster General, )

United States Postal Service )

(Headquarters), )

Agency. )

)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the basis of race (African-American) in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated

against when he was given an unsatisfactory performance appraisal during

his probationary period and on November 20, 1995, he was informed that

he would be terminated from his employment as a Postal Police Officer.

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission REVERSES and REMANDS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a probationary Postal Police Officer at the agency's

Philadelphia Division facility. Believing he was a victim of

discrimination, complainant sought EEO counseling and, subsequently,

filed a formal complaint on December 27, 1995. At the conclusion of

the investigation, complainant was provided a copy of the investigative

report(s) and requested a hearing before an EEOC administrative judge

(AJ). Following a hearing, where ten witnesses and complainant testified,

the AJ issued a decision finding discrimination.

The AJ concluded that the nature of the management's official's conduct

and testimony were direct evidence of discrimination. The AJ found that

the racially charged statements and hand gestures, clearly delineated

in the AJ's decision, made by the Officer-in-Charge (OIC)(Caucasian) to

a fellow Postal Police Officer (PPO)(Caucasian) which impacted directly

on the handling of the investigation against the complainant constituted

direct evidence of discrimination; moreover, that the OIC's statements

were a manifestation of his discriminatory animus and that it tainted the

agency's ability to objectively assess any of the complainant's conduct.

In addition, because the OIC was the de facto prosecutor and decision

maker regarding the allegations of misconduct against the complainant,

the OIC had a hand in every phase of the disciplinary process; therefore,

none of the agency's allegations could withstand scrutiny. The AJ found

that each allegation by the agency was tainted by discriminatory animus

and fraught with other inconsistencies. Ultimately, the AJ found that the

agency would not have acted upon any of the allegations of misconduct made

against the complainant in the absence of discrimination. Finding that

the agency had intentionally discriminated against complainant on the

basis of race, the AJ recommended relief included that complainant be

reinstated to his previous position of Postal Police Officer; back pay;

expungement of negative references from complainant's official personnel

folder and successful completion of complainant's probationary period;

compensatory damages in the amount of $1000; and reasonable attorney's

fees and costs.

The agency's final decision rejected the AJ's decision and concluded that

no discrimination had occurred. In addition to the agency's contrary

findings to the AJ's decision the agency raised an issue with regard

to the first AJ (AJ-1) assigned to complainant's case. It appears

that the first AJ assigned to the case indicated her intention to grant

summary judgment in a telephone conference with the parties' counsel

prior to the case being transferred to another AJ (AJ-2).<2> However,

AJ-1 never issued a final decision, or reduced a decision to a form

which complainant could have appealed. Furthermore, there is nothing

in the governing regulations which prohibits any AJ from reconsidering a

ruling prior to it being finalized. Therefore, we find that the agency's

argument in this regard lacks merit.

On appeal, complainant contends that the AJ correctly summarized the

facts and reached the appropriate conclusions of law.

Pursuant to 64 Fed. Reg 37,644, 37,659 (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). 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).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb the

AJ's decision.

Compensatory Damages

The AJ recommended a compensatory damages award in the amount of

$1,000. The AJ noted that although complainant presented minimal evidence

of compensatory damages, this award was nevertheless based on the Report

of Investigation and complainant's testimony that the discrimination he

suffered caused humiliation, embarrassment and stress when he had to go

back to his craft position. Complainant did not indicate that he sought

medical treatment as a result of the discrimination nor did he provide

evidence of any other out-of-pocket expenses, past or future.

The Commission notes that damage awards of emotional harm are difficult

to determine and that there are no definite rules governing the amount

to be awarded in given cases. In this regard, a proper award must meet

two goals: that it not be "monstrously excessive" standing alone and

that it be consistent with awards made in similar cases. See Cygnar

v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). We further note

that jury and court awards for nonpecuniary damages based on humiliation

and embarrassment have varied considerably. See, e.g., Kuntz v. City

of New Haven, 3 A.D. Cas. (BNA) 1590, 1592 (D.C. Conn.)($500.00 award

for emotional distress based on plaintiff's testimony that he was

"disappointed", "cranky" with family and friends, "embarrassed" at not

having been promoted, and had many sleepless nights), aff'd without

opinion, 29 F.3d 622 (2d Cir.), cert. denied, 115 S.Ct. 667 (1994);

Sassaman v. Heart CityToyota, 66 Fair Empl. Prac. Cas. (BNA) 1230,

1236 (N.D. Ind. 1994) (jury award of $2,000.00 in nonpecuniary damages

appropriate in sexual harassment case based on plaintiff's testimony

concerning humiliating, degrading, and embarrassing conduct of four male

supervisory employees and testimony of employer's medical expert that

plaintiff likely would suffer "daily pain" having to work in hostile

environment).

Several Commission decisions have awarded compensatory damages in cases

similar to complainant's. See, e.g., Benson v. Department of Agriculture,

EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 sufficient to compensate

for embarrassment and humiliation); Lawrence v. United States Postal

Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000 for emotional

harm caused by short period of sexual harassment where agency failed to

take appropriate action to promptly stop the harassment). Taking into

account the testimony provided by complainant, the Commission finds that

the AJ considered the proper factors and goals in recommending a

compensatory damages award of $1,000. The Commission notes that this amount

is not "monstrously excessive" standing alone and is consistent with

amounts awarded in similar cases.

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission REVERSES

the agency's final decision and remands the matter to the agency to take

remedial actions in accordance with this decision and the ORDER below.

ORDER

The agency is ORDERED to take the following remedial action:

1. The agency shall reinstate complainant to his previous position as a

Postal Police Officer in a non-probationary status. Complainant shall

also be awarded back pay, seniority and other employee benefits from

the date of the effective removal.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due complainant, pursuant

to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501), no later than sixty (60) calendar

days after the date this decision becomes final. The complainant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due, and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay 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 referenced in the statement entitled

"Implementation of the Commission's Decision."

The agency is directed to expunge all negative references from

complainant's official personnel folder and note complainant's successful

completion of his probationary period.

The agency is directed to award complainant compensatory damages in the

amount of $1000.

The agency is directed to conduct training for the Official-in-Charge

who was found to have discriminated against complainant and provide a

minimum of sixteen (16) hours of EEO training with respect to Title VII.

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 back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Philadelphia, Pennsylvania facility

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 (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).

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.

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 (R0400)

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:

July 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)

INITIAL

DATE

TO: CARLTON M. HADDEN

TO: HILDA RODRIGUEZ

APPEAL NUMBER 01A00241

AGENCY NUMBER HI-0074-96

REQUEST NUMBER

HEARING NUMBER 170-98-8068X

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY): Roseanne Medina

5/9/00

(SUPERVISOR): Mary Jean Moore

(DIVISION DIRECTOR): Marie Fitzgerald

COMPLAINANT(S): Devuono Hunter, Sr.

AGENCY: United States Postal Service

DECISION: Reverse and Remand

STATUTE(S) ALLEGED: Title

VIIBASIS(ES) ALLEGED:

RBISSUE(S) ALLEGED: D2

WHERE DISCRIMINATION IS FOUND (ONLY): (A)

BASIS(ES) FOR FINDING: RB(B)

ISSUES IN FINDING:

TYPIST/DATE/DISKETTE RM4/5/9/00

SPELL CHECK yes

TEAM PROOFED

DATE

(CHECK ALL APPLICABLE CODES)

MERIT DECISION

MERIT DECISION (CONTINUED)

? 4A - MERITS DECISION

? 4B - OFO FOUND DISCRIMINATION

LIST BASIS CODES:___RB______________________________

LIST ISSUE CODES:__________________________________

? 4C - OFO FOUND NO DISCRIMINATION

? 4R - OFO FOUND SETTLEMENT BREACH

? 4S - OFO FOUND NO SETTLEMENT BREACH

? 4E - AGENCY FOUND DISCR./BREACH

? 4F - AGENCY FOUND NO DISCR./BREACH

? 4H - OFO AFFIRMED AGENCY

? 4I - OFO REVERSED AGENCY

? 4J - OFO MODIFIED AGENCY:

(NOTE): IF AFFIRMED IN PART AND REVERSED IN

PART, THEN (3L) CODE REQUIRED IF AT LEAST

ONE ISSUE IS REMANDED.

? 3L - OFO REMANDED PART OF AGENCY'S MERITS

DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO

REQUIRES (4I) CODE.

? 3P - ADVERSE INFERENCE

? 4K - AJ FOUND DISCRIMINATION

? 4L - AJ FOUND NO DISCRIMINATION

? 4M - AJ MADE NO FINDING

? 4N - OFO AFFIRMED AJ

? 4O - OFO REVERSED AJ

? 4P - OFO MODIFIED AJ

? 4T - AJ ISSUED SUMMARY JUDGMENT DECISION

? 4U - OFO AFFIRMED AJ SUMMARY JUDGMENT

? 4V - OFO REVERSED AJ SUMMARY JUDGMENT

? 3H - OFO DENIED ATTORNEYS FEES

? 3I - OFO APPROVED ATTORNEYS FEES

? 3J - OFO MODIFIED ATTORNEYS FEES

? 4Q - COMPLIANCE REQUIRED

REVISED - (2/3/00)

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 ("EEOC") dated ____________ which

found that a violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e 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 United States Postal Service, Philadelphia, Pennsylvania

(hereinafter, the facility), supports and will comply with such Federal

law and will not take action against individuals because they have

exercised their rights under law.

The facility has been found to have violated Title VII when it

intentionally discriminated against an employee based on his race when

it gave an employee an unsatisfactory performance appraisal during his

probationary period and informed him that he would be terminated from

his employment as a Postal Police Office. The facility was ordered

to reinstate the employee to his previous position of Postal Police

Officer in a non-probationary status; provide back pay; expunge

negative references from the employee's official personnel folder;

pay the employee compensatory damages; and reasonable attorney's fees

and costs.

The facility 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. � 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 record contains no explanation as to why complainant's case was

transferred from AJ-1 to AJ-2.