01964256
10-01-1998
Dorothy D. Hatchett, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Dorothy D. Hatchett v. United States Postal Service
01964256
October 1, 1998
Dorothy D. Hatchett, )
Appellant, )
)
) Appeal No. 01964256
v. ) Agency Nos. 4D-1246-93
) 4D-1616-93
) Hearing Nos. 120-94-5322X
William J. Henderson, ) 120-94-5323X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DECISION
On May 10, 1996, Dorothy D. Hatchett (appellant) timely appealed the
final decision of the United States Postal Service (agency), dated
March 21, 1996, concluding she had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. Appellant had alleged that agency officials
discriminated against her:
(1) on the basis of her race (black) when, on October 28, 1992, she
was harassed by being questioned by a Postal Inspector about her injury
compensation claim; and
(2) on the basis of her race (black), and in reprisal for engaging in
prior EEO activity, when, in January 1993, she was issued a Letter of
Removal, which was subsequently reduced to a 2 1/2 day suspension.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
At the time this matter arose, appellant was employed as a Distribution
Window Clerk, PS-05, at the Midlothian, Virginia Post Office. The record
indicates that in 1989 appellant suffered a work-related injury, diagnosed
as a pulled chest muscle. Subsequently, appellant claimed a recurrence of
this original injury and went out on medical leave on November 4, 1991.
In December 1991, appellant underwent surgery for a herniated cervical
disc. Following the surgery, appellant was unable to return to work
and perform her regular duties. Therefore, in January 1992, after all
her accrued leave had been used, appellant requested a limited duty job
assignment within her medical restrictions. The Midlothian Postmaster
(white) denied her request, asserting he had no such position available.
At this time, appellant was advised by the agency's Human Relations office
that, because she was not receiving workers' compensation benefits,<0>
she could apply for unemployment benefits from the Virginia Employment
Commission (VEC), the state unemployment agency. The record indicates
that appellant received unemployment benefits from February through August
1992, at which time she returned to work at the agency in a limited duty
assignment.
The record indicates that appellant was also a real estate agent, having
received her license in 1988. Agency officials testified that postal
employees were permitted to engage in other employment outside their
work hours, such as real estate sales, provided it did not conflict with
their Postal Service job. During June 1992, while she was out of work,
appellant was listed in a real estate magazine as the agent to contact
to see two different homes for sale. The evidence of record indicates
that while appellant was listed in the advertisement she was not the
listing agent. The record further establishes that appellant received
no real estate commissions during the period in question.
Upon learning of her real estate work, agency officials requested an
investigation by a Postal Inspector into whether appellant was improperly
receiving other income, both from working and in unemployment benefits,
that might be offset over any future OWCP award which appellant might
receive. In July 1992, a Postal Inspector posed as a home buyer and made
arrangements for appellant to show the two homes in the advertisement.
It appears that appellant expressed much reluctance to show the homes due
to her health problems, but agreed when the Postal Inspector persisted.
Following the investigation, the agency reported appellant to the VEC for
possibly misleading that agency in her unemployment benefits application.
The VEC later determined that appellant was entitled to the benefits
she received and took no action against her.
As already noted, appellant returned to work with the agency in a
limited duty assignment in September 1992. In October 1992, a Postal
Inspector (white) interviewed appellant twice concerning her injury
compensation claim and what she had told the Midlothian Postmaster and
the VEC about the alleged recurrence of a prior work-related injury.
The Postal Inspector testified that he concluded that appellant had not
violated any agency rules or regulations when she received unemployment
benefits from VEC because management had informed her that no limited
duty assignment was available for her to perform when her leave ran out.
By letter dated January 19, 1993, the agency issued appellant a Letter of
Removal for: (1) making false statements to the VEC regarding her postal
employment, and (2) working as a real estate agent during the period of
time when she was disabled from working her postal job. The removal was
to be effective on February 28, 1993. However, as a result of a grievance
resolution, the proposed removal was reduced to a 2 1/2 day suspension.
The record establishes that appellant had engaged in prior EEO activity
at the time her removal was proposed. However, both agency officials
involved in the proposal denied any knowledge of that prior activity at
the time they sought appellant's removal.
Appellant cited a comparative employee (white) who had been determined by
the agency to have improperly collected workers' compensation benefits.
The record established that this employee was required to return some
of the benefit money he received, but was not subjected to disciplinary
action. Appellant also noted that two other employees (white) were
provided limited duty assignments in less time than appellant, and at
least one worked at McDonald's while her workers' compensation claim
was pending, but was not referred to the Postal Inspectors. The agency
countered with other examples of employees (white and black) who were
investigated for improprieties concerning injury reimbursement claims.
The record reveals that appellant filed two separate EEO complaint
with the agency on November 16, 1992 (Agency Case No. 4D-1246-93) and
March 31, 1993 (Agency Case No. 4D-1616-93), alleging that the agency
had discriminated against her as referenced above. The agency accepted
the complaints and conducted investigations. At the conclusion of the
investigations, appellant requested an administrative hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge (AJ).
The AJ consolidated the two complaints for hearing.
On December 15, 1995, following a hearing at which eleven witnesses
testified, the AJ issued a recommended decision concluding that
the evidence of record supported a finding that appellant had been
discriminated against on the basis of her race, but not in reprisal for
engaging in prior EEO activity, when the agency proposed her removal and
later reduced the penalty to a 2 1/2 day suspension.<0> By contrast,
the AJ concluded that the evidence did not support a finding of race
discrimination with regard to the actions of the Postal Inspector in
this matter. In reaching his discrimination finding, the AJ noted that
the agency's explanation for the proposed removal was its reliance
on the Postal Inspector's investigative report. However, applying
the three-tiered analytical framework outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973),<0> the AJ concluded that appellant
had proven this articulated reason was "not worthy of credence" and
"based on discriminatory animus" because the evidence established
that appellant committed no violation of agency rules as charged,
and similarly situated white employees were treated more favorably.
The AJ further noted that the agency proffered no evidence to justify
the disparate treatment of appellant.
In order to remedy appellant for the agency's discriminatory actions,
the AJ recommended that the suspension be rescinded and expunged from
agency records, and appellant be awarded backpay and restoration of
all benefits lost as a result of the suspension. The AJ also awarded
appellant all reasonable costs for the prosecution of her case, including
restoration of leave used for the purpose of preparing for her EEO hearing
if a reasonable amount of official time was denied her. Finally, the AJ
found that appellant was entitled to $20,000 in non-pecuniary compensatory
damages for the physical and emotional distress she suffered as a result
of the discrimination.
In a final decision dated March 21, 1996, the agency adopted the AJ's
conclusion that no discrimination occurred with regard to the actions
of the Postal Inspector and that appellant was not subjected to unlawful
retaliation. However, the agency rejected the findings and conclusions
of the AJ with regard to race discrimination in the disciplinary action
issued against appellant. It is from this decision that appellant now
appeals.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
recommended decision sets forth the relevant facts and properly analyzes
the appropriate regulations, policies and laws. Nothing proffered by the
agency in its final decision or on appeal differs significantly from the
arguments presented at the hearing and given full consideration by the AJ.
The agency, for example, citing St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993), contends the AJ erred in his ultimate finding in this
case because a conclusion of discrimination cannot be drawn solely from
appellant's showing that the agency's proffered reasons for its actions
were false. The Commission finds that the agency misunderstands the
meaning of Hicks. Rather, the majority of the circuit courts have
interpreted Hicks, like the AJ in the instant matter, to mean that
evidence sufficient to discredit an employer's proffered reasons
for its actions, taken together with appellant's prima facie case,
may be sufficient to support a finding of discrimination. See McCoy
v. Department of Defense, EEOC Appeal No. 01956826 (October 31, 1997).
Therefore, the Commission discerns no basis upon which to overturn the
AJ's finding of discrimination in this matter.
We also affirm the AJ's recommended relief, including the award of
non-pecuniary compensatory damages in the amount of $20,000 for physical
and mental distress cause by the discrimination.<4> In this regard,
the AJ found that appellant, her physicians and her coworker credibly
testified to the emotional and physical harm appellant suffered as a
result of the removal/suspension action. The AJ further was correct
in recognizing the preexisting mental and emotional condition of
appellant prior to the proposed removal action. However, the AJ found
that the evidence supported a conclusion that the suspension resulted
in a worsening of appellant's anxiety and depression, and caused her
to become withdrawn from her family and friends, and exhibit anger
and suspicion which had not previously existed. Based on all these
factors, the Commission finds that the AJ's award was proper under the
circumstances and consistent with the amount awarded in similar cases.
See, e.g., Terrell v. Department of Housing and Urban Development, EEOC
Request No. 05970336 (November 20, 1997); Wallis v. United States Postal
Service, EEOC Appeal No. 01950510 (November 13, 1995); and Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE that portion of the agency's final decision which
entered a finding of no race discrimination with regard to the agency's
decision to propose appellant's removal and later suspend her for 2
1/2 days. In order to remedy appellant for its discriminatory actions,
the agency shall, comply with 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 suspension at
issue and expunge from appellant's personnel files all reference
to the suspension and the proposed removal action from which the
suspension originated. Appellant shall be provided with appropriate
back pay and benefits, with interest, as indicated below.
(B) The agency shall determine the appropriate amount of backpay,
interest and other benefits due appellant, pursuant to 29 C.F.R. �
1614.501, no later than thirty (30) calendar days after the date
this decision becomes final. The appellant 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 appellant
for the undisputed amount within thirty (30) calendar days of the
date the agency determines the amount it believes to be due. The
appellant 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."
(C) Within thirty calendar days of the date this decision becomes
final, the agency shall solicit from appellant an accounting of all
costs associated with the prosecution of this complaint. Within thirty
days of receipt of that information from appellant, the agency shall
issue her a check reimbursing her for all reasonable costs. As part
of this process, the agency shall review the amount of official time
requested by appellant to prepare for her hearing on these matters,
and if any reasonable amount of official time was denied, the agency
should restore the leave appellant used for that purpose.
(D) Within thirty calendar days of the date this decision becomes
final, the agency shall award appellant the amount of $20,000 in
non-pecuniary compensatory damages for mental and physical distress.
(E) The agency shall post at the Midlothian, Virginia 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 cited in the paragraph entitled
"Implementation of the Commission's Decision," within ten (10) calendar
days of the expiration of the posting period.
(F) The agency shall provide training in the obligations and duties
imposed by the Title VII to the officials responsible for the action
at issue.
(G) 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 appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct 1, 1998
_________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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 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 supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The United States Postal Service has been found to have discriminated
against the individual affected by the Commission's finding on the bases
of her race when her removal was proposed and she was subsequently
suspended. The agency has been ordered to rescind the suspension,
provide the individual with appropriate backpay and costs for prosecuting
her complaint, and award the individual $20,000 in compensatory damages.
The United States Postal Service 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 United States Postal Service 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
01 Appellant's workers' compensation claim, filed in June-July 1992,
was rejected by the Office of Workers Compensation Programs (OWCP)
because that agency determined that appellant's current injury was not
a recurrence of her previous work-related injury.
02 The AJ found appellant failed to establish a prima facie case of
reprisal discrimination because there was insufficient evidence that the
responsible management officials were aware of her prior EEO activity at
the time her removal was proposed.
03 See also, Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867
(1984); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253-256 (1981).
04 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. It based this assessment, inter alia, on a review of the
statutory provisions of the Civil Rights Act of 1991 in relation
to one another and on principles of statutory interpretation which
require statutes to be interpreted as a whole. In particular, the
Commission discussed the meaning of the statute's definition of the term
"complaining party" and the significance of the reference to the word
"action" in Section 102(a). In addition to the specific reasons set
forth in Jackson for this holding, Section 2000e-16(b) (Section 717) of
the Civil Rights Act of 1964 (42 U.S.C. �2000e et seq.)(CRA) conveyed
to the Commission the broad authority in the administrative process
to enforce the nondiscrimination provisions of subsection (a) through
"appropriate remedies". Similarly, in Section 3 of the Civil Rights Act
of 1991 (CRA of 1991), Congress refers to its first stated purpose as
being "to provide appropriate remedies for intentional discrimination
and unlawful harassment in the workplace", thereby reaffirming that
authority. Consequently, it is our view that in 1991, Congress clearly
intended to expand the scope of the "appropriate remedies" available
in the administrative process to federal employees who are victims
of discrimination. Moreover, in Section 717(c) of the CRA, the term
"final action" is used to refer to administrative decisions by agencies
or the Commission, as distinguished from the term "civil action", used
to describe the rights of employees after such final action is taken.
Therefore, the Commission reaffirmed the holding therein. See Cobey
Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and
01960518 (April 27, 1998).