Earnest L. Carter, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionOct 19, 2000
01986648 (E.E.O.C. Oct. 19, 2000)

01986648

10-19-2000

Earnest L. Carter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Earnest L. Carter

01983997, 01984851, 01986648

October 19, 2000

.

Earnest L. Carter,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal Nos. 01983997, 01984851, 01986648

Agency No. 4-H-300-1046-96

Agency No. 4-H-300-1071-96

Agency No. 4-H-300-1079-96

Agency No. 4-H-300-1100-96

Agency No. 4-H-300-0015-97

Agency No. 4-H-300-0063-97

Hearing No. 110-98-8093X

Hearing No. 110-97-8343X

Hearing No. 110-98-8103X

Hearing No. 110-98-8104X

DECISION

INTRODUCTION

Complainant timely initiated appeals of three final agency decisions

(FADs) concerning his complaints of unlawful employment discrimination

in retaliation for his prior EEO activity in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

The appeals are accepted pursuant to 29 C.F.R. � 1614.405.

BACKGROUND

The record reveals that during the relevant time period, complainant was

employed as a Letter Carrier, at the agency's facility in Riverdale,

Georgia. In 1996 and 1997 complainant filed a series of formal EEO

complaints each of which alleged that supervisors had retaliated against

him for prior EEO activity. Two of these complaints<2> were dismissed by

the agency on procedural grounds. Complainant appealed the dismissal.<3>

Five complaints were accepted and investigated by the agency. With

respect to one of those complaints,<4> complainant requested that the

agency issue a FAD without a hearing. The agency did so, finding that

complainant had failed to prove retaliation. Complainant appealed.<5>

With respect to the remaining four complaints,<6> complainant requested

a hearing before an EEOC Administrative Judge (AJ). The complaints were

consolidated and following the hearing, the AJ issued a recommended

decision finding that complainant had been subjected to retaliation.

As remedies for the agency's retaliatory actions, the AJ recommended

that complainant be awarded compensatory damages; that an appropriate

notice be posted in the facility; that complainant be paid reasonable

attorney's fees; and that �the Agency consider chastising the Supervisors

at issue and/or provide instruction from Senior EEO personnel as to not

retaliating against complaining employees.�

In its FAD, the agency accepted the AJ's finding of discrimination and

his recommendation regarding posting and payment of attorney's fees

and damages. With respect to compensatory damages the FAD stated:

You will be provided compensatory damages in accordance with the

compensatory damages provisions of the Civil Rights Act of 1991 upon

providing the Agency documentation which shows the connection between

the alleged damages and the actions alleged.

The FAD did not accept, however, the AJ's recommendation of corrective

action with respect to the responsible supervisors, stating:

I am rejecting that portion of the Administrative Judge's recommendation

that the Agency consider chastisement of the supervisors involved because

that is not an appropriate remedy and is not within the Administrative

Judge's authority. Any action in this regard will be taken solely at

the discretion of management.

Inexplicably, the FAD neither explicitly accepted nor rejected the AJ's

recommendations with respect to �instruction from Senior EEO personnel

as to not retaliating against complaining employees.� Complainant

appealed.<7>

ANALYSIS AND FINDINGS

Appeal No. 01986648

Agency Case No. 4-H-300-1046-96

On November 27, 1995, complainant submitted to the agency a request for

4.0 hours of annual leave to be taken after he had worked 4 hours out

of his 8 hour shift on that day. Complainant's supervisor approved the

request but, for reasons we need not here detail, the supervisor later

instructed complainant to clock out before he had completed the 4 hours

he had intended to perform on that day. This resulted in complainant

being charged 4.77 hours of annual leave instead of the 4 hours he

had requested.

In response, complainant contacted an EEO counselor and later filed

a formal complaint seeking, inter alia, compensatory damages. In its

FAD, the agency, addressing complainant, summarized his allegations as

follows:

In this complaint, you alleged you were discriminated against because

of retaliation (prior EEO activity), when on November 27, 1995, you

requested and were approved for 4 hours of annual leave, however, you

were charged 4.77 hours of annual leave by your supervisor.

The FAD dismissed the complaint as moot because the improper annual

leave charge that formed the basis for the complaint had been ameliorated

through the grievance process.

EEOC Regulation 29 C.F.R. � 1614.107(a)(5)), provides for the dismissal of

a complaint, or portions thereof, when the issues raised therein are moot.

To determine whether the issues raised in complainant's complaint are

moot, the fact finder must ascertain whether (1) it can be said with

assurance that there is no reasonable expectation that the alleged

violation will recur; and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged discrimination.

Henderson v. Department of the Treasury, EEOC Request No. 05940820

(August 31, 1995) (citing County of Los Angeles v. Davis, 440 U.S. 625

(1979)). When such circumstances exist, no relief is available and no

need for a determination of the rights of the parties is presented.

When an complainant has requested compensatory damages, however, an

agency cannot dismiss an allegation as moot unless it can show that the

complainant is not entitled to such damages. Ellicker v. Department of

Agriculture, EEOC Request No. 05931079 (September 22, 1994).

In this case, it cannot be said that the effects of the alleged

discrimination have been eradicated. In his formal complaint, complainant

requested compensatory damages. Because the agency failed to show

that complainant was not entitled to such damages, the agency cannot

dismiss these allegations as moot. The agency should have requested that

complainant provide some proof of the alleged damages incurred, as well

as evidence linking those damages to the retaliatory action at issue.

See Benton v. Department of Defense, EEOC Appeal No. 01932422 (December

10, 1993). Accordingly, the agency's decision to dismiss Agency Case

No. 4-H-300-1046-96 for mootness is REVERSED, and the complaint is

REMANDED to the agency for further processing in accordance with this

decision and applicable regulations.

Agency Case No. 4-H-300-1100-96

According to complainant, on April 4, 1996, as he was in the process of

�casing� or sorting mail in preparation for delivery, he was instructed

by his supervisor to refrain from his routine practice of folding thin

�flats�<8> together with letter-sized mail. The supervisor regarded this

practice as time wasting. Complainant contends that these instructions

were inconsistent with his training and that other letter carriers were

not required to conform to them.

Believing himself to be a victim of retaliation, complainant contacted an

EEO counselor and, later, on October 23, 1996, filed a formal complaint.

On December 4, 1996, the agency issued a FAD dismissing the complaint on

the grounds that complainant had not been aggrieved by the supervisor's

actions and accordingly had failed to state a claim in his complaint.

We find that the agency improperly dismissed complainant's complaint for

failure to state a claim. See 29 C.F.R. � 1614.107(a)(1). We understand

complainant to be contending that compliance with his supervisor's

instruction would make performance of his letter carrier duties more

difficult and that his working conditions would thereby be affected.

For this reason we find that complainant has alleged that he was

aggrieved with respect to a term, condition, or privilege of employment

as a result of the alleged directive and has stated a claim. See Diaz

v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994). Accordingly, the agency's decision is REVERSED, and the complaint

is REMANDED to the agency for further processing in accordance with this

decision and applicable regulations.

Appeal No. 01983997

On July 22, 1996, complainant was issued a Notice of Proposed Removal

charging him with Unsatisfactory Job Performance Due to Nondelivery

of Delivery Point Sequence (DPS) Mail; Delay of First-Class Mail; and

Unacceptable Conduct. These charges arose out of an incident on July 2,

1996 when complainant failed to deliver any of the more than 500 pieces

of DPS mail for a route he had been assigned, returning the mail to the

agency facility instead. The proposed removal was latter reduced to a

14-day suspension.

Although we are satisfied that complainant established a prima facie of

retaliation,<9> we find that the agency has articulated a legitimate,

nondiscriminatory reason for its action and that complainant has

failed to prove by a preponderance of the evidence that the articulated

reason is a pretext designed to conceal discriminatory animus. See,

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318

(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell

Douglas to retaliation cases). We note that complainant does not dispute

that he failed to deliver a single piece of DPS mail in the course of

the incident for which he was disciplined. We find that his failure in

that regard was in contravention of instructions he had received from

agency management and that discipline was appropriate. We cannot say

on this record that the discipline ultimately imposed, i.e., a 14-day

suspension, was excessive or indicative of a retaliatory motivation.

Accordingly, we AFFIRM the FAD.

Appeal No. 01984851

Compensatory Damages

So far as the record reveals, the agency has not yet rendered a

decision on the amount of compensatory damages to be awarded complainant.

Accordingly, complainant's attempt to appeal with respect to compensatory

damages is premature and will be DISMISSED. Daniels v. Department of

the Army, EEOC Request No. 05950959 (March 20, 1997).

Instruction for Supervisors

The agency in its FAD did not adopt the AJ's recommendation that the

supervisors receive instruction on the requirements of the EEO laws with

respect to retaliation. The agency offered no explanation, either in the

FAD or in connection with this appeal concerning its failure to do so. We

have frequently required agencies to provide employees with training with

respect to the requirements of the federal anti-discrimination laws.

See e.g., Skinner v. Army, EEOC Appeal No. 01985850 (July 14, 1999);

Jackson v. United States Postal Service, EEOC Appeal No. 01972555

(April 15, 1999); Cook v. United States Postal Service, EEOC Request

No. 05981041 (August 5, 1999) We find that in this case, where the agency

has admitted that its supervisory personnel engaged in intentional acts of

retaliation against complainant, mandatory instruction is an appropriate

remedy. Accordingly, the FAD is MODIFIED with respect to that issue.

�Chastisement� of Supervisors

The agency held that the question of whether it would consider

disciplining the supervisors who retaliated against complainant was

a matter within its discretion and not a subject concerning which the

EEOC AJ had any authority. The agency's position is not well taken.

It is established Commission policy that disciplinary action against an

offending official should be considered by the agency where such action

is necessary as a corrective remedy under Title VII of the Civil Rights

Act of 1964. That is, after a finding of discrimination has been made,

the agency should determine whether the offending official should be

disciplined. Cassida v. Department of the Army, EEOC Request No. 05900794

(September 14, 1990). Here, the agency has accepted the AJ's finding

of retaliation. It should also have accepted the AJ's recommendation

that the agency consider disciplining the supervisors who perpetrated

the retaliation. Accordingly, the FAD is MODIFIED with respect to that

issue.

CONCLUSION

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

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, in Appeal No. 01986648 we REVERSE and REMAND

the FADs; in Appeal No. 01983997 we AFFIRM the FAD; and in Appeal No.

01984851 we DISMISS the appeal as it relates to compensatory damages

and MODIFY the FAD as it relates to instruction and discipline of

supervisors.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. The agency is directed to conduct training for the supervisors who

engaged in retaliation, as well as all managers in complainant's division.

The agency shall address these employees' responsibilities with respect

to prohibiting and refraining from retaliation in the workplace, and all

other supervisory and managerial responsibilities under equal employment

opportunity laws.

2. The agency shall take appropriate preventative steps to ensure that

no employee is subjected to retaliation and to ensure that appropriate

steps are taken immediately.

3. The agency shall consider whether it is appropriate to impose

discipline on the supervisors who engaged in retaliation.

4. The agency shall post copies of the notice as directed below under

�Posting Order� below.

The agency is ordered to process the remanded claims in accordance with 29

C.F.R. � 1614.108. The agency shall acknowledge to complainant that it

has received the remanded claims within thirty (30) calendar days of the

date this decision becomes final. The agency shall issue to complainant

a copy of the investigative file and also shall notify complainant of

the appropriate rights within one hundred fifty (150) calendar days of

the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If complainant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

POSTING ORDER (G0900)

The agency is ordered to post at its Riverdale, Georgia 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.

ATTORNEY'S FEES (H0900)

If complainant 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 (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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

(R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 19, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Agency Case Nos. 4-H-300-1046-96 and 4-H-300-1100-96

3EEOC Appeal No. 01986648

4Agency Case No. 4-H-300-0015-97

5EEOC Appeal No. 01983997

6Agency Case Nos. 4-H-300-1071-96, 4-H-300-1079-96, 4-H-300-0063-97,

4-H-300-0102-97

7EEOC Appeal No. 01984851.

8A flat is an oversized piece of mail with a thickness of between 1/4

and 3/4 inches.

9The AJ's findings discussed elsewhere in this opinion, which involved

the same supervisors who imposed the 14-day suspension on complainant,

are binding on the agency. Those findings are sufficient to establish

a prima facie case of retaliation here.