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.