01976674
12-03-1999
Gina Salem, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.
Gina Salem, )
Appellant, )
) Appeal No. 01976674
v. ) Agency No. 1F-946-1093-94
) Hearing No. 370-96-X2188
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region) )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
claim that the agency violated Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.<1> The Commission hereby accepts
the appeal in accordance with EEOC Order No. 960, as amended.
The issues presented are: (1) whether complainant proved, by a
preponderance of the evidence, that she was discriminated against because
of her race (African-American), color (Black), sex (pregnancy), and
retaliation (prior EEO activity by spouse) when, beginning June 1, 1994,
and ongoing, she was denied light duty work or a detail to accommodate
her pregnancy and was, therefore, required to return to full duty; and
(2) whether the EEOC Administrative Judge (AJ) properly issued sanctions
against the agency for failure to advise a witness that she could bring
her children to the EEOC hearing.
During the time period relevant to her complaint, complainant was employed
by the agency as a Mail Processor, PS-4, on Tour 1. As complainant was
pregnant with an expected delivery date of January 15, 1995, she submitted
a medical request from her doctor for light duty on June 1, 1994.
Her supervisor (S-1) submitted it to his supervisor (S-2), who in turn
submitted it to the Senior Manager, Distribution Operations (SMDO), who
denied the request on the grounds that there were no light duty positions
available. Because she was in growing physical discomfort, however,
on July 22, 1994, complainant next submitted a request for a detail to
enable her to sit while she worked. The SMDO denied the request on July
23, 1994, again on the grounds that it was a request for light duty, that
Tour 1 was above the current 1% employee complement for light duty, and
that there were no positions available for light duty on any other tour.
Believing that she was a victim of discrimination, complainant sought
EEO counseling and later filed a formal EEO complaint dated October 20,
1994, wherein she alleged that she had been discriminated against on
the above-referenced bases when she was denied light duty. The agency
complied with all procedural and regulatory prerequisites, and on June
11, 1997, the Administrative Judge (AJ) issued a Recommended Decision
(RD) finding no discrimination on any basis. The AJ did, however,
impose sanctions against the agency for not advising a witness (W-1)
that she could bring her children to the case hearing, resulting in
her failure to appear for that reason, not being able to engage a baby
sitter. Subsequently, the agency adopted that part of the RD finding no
discrimination as its own final decision, but rejected that part of the
RD imposing sanctions.
On appeal, complainant's attorney contends that complainant was subjected
to disparate treatment when she was denied light duty assignments
while other pregnant females outside her protected groups were given
such assignments during the same time period by the same supervisors.
She notes that in any case, under the Pregnancy Discrimination Act
enforced by Title VII, an individual alleging discrimination based upon
pregnancy need not meet the �same supervisor test� as required in the
typical discrimination complaint. Complainant's attorney further contends
that the AJ erred by failing to address the issue of the definition of 1%
of employees on light duty as a discriminatory ceiling or floor, i.e.,
whether 1% was the maximum number of employees allowed on light duty,
as maintained by the agency, or the minimum number, as maintained by
the union. The agency contends that these arguments fail to rebut the
AJ's finding that complainant was not the victim of discrimination.
As to the issue of sanctions, complainant's attorney notes that by
regulation, the agency is required to provide for the attendance at a
hearing of all employees approved as witnesses by an administrative judge.
The agency contends that its only obligation was to notify the witness
of the date, time, and location of the hearing, which it did.
Discrimination Claim:
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
In this regard, we note that the AJ found credible the SMDO's reason
for not approving complainant's request for light duty, namely, that
since the number of employees already on light duty far exceeded the 1%
ceiling limit, he could not approve additional employees for light duties
unless they were able to perform the core functions of their position,
which complainant's medical limitations would prevent her from doing.
The AJ found that there was no evidence that the SMDO approved light
duty for any other employee during the relevant time period. While a
later union investigation found that the majority of employees whom the
agency claimed were on light duty were actually on limited duty and
should, therefore, not have been counted against the 1% limitation,
the AJ found that there was no evidence that the SMDO did not have a
reasonable belief that Tour 1 had exceeded the 1% limitation on light
duty employees at the time he denied complainant's request.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that proof that the reasons articulated by the employer
are false does not automatically compel a finding of discrimination.
The complainant must show not only that the reasons offered by the
employer were false, but that discrimination was the real reason for the
employer's action. We find that complainant cannot show the latter since,
as the AJ pointed out, there is no evidence that the SMDO approved light
duty for any other employee during the relevant time period. (Of the
two comparative employees cited by complainant as similarly situated,
one worked on Tour 3 and received her light duty assignment from another
light duty coordinator. While the SMDO did grant the other's request
to work on Tour 2, she then had to apply for and was granted a light
duty assignment by that Tour Leader.) Nor did the SMDO say or do
anything else to indicate a discriminatory motivation for denying the
light duty request, as opposed to the mistaken, but still legitimate,
nondiscriminatory reason that he offered. As to complainant's claim of
reprisal, the SMDO denied knowing that the employee he had terminated
was complainant's husband, a crucial part of a prima facie case. The
fact that this employee had a different last name than complainant lends
credence to the SMDO's denial. In any event, complainant was not able
to show that the SMDO's legitimate, nondiscriminatory reason for not
assigning her to light duty was a pretext for discrimination.
The Issue of Sanctions:
As a preliminary matter, we note that an AJ has broad discretion in the
conduct of a hearing, and that pursuant to 64 Fed. Reg. 37,644, 37,657 (to
be codified and hereinafter referred to as 29 C.F.R. �1614.109(e)(3)(v)),
an award of sanctions in the form of attorney's fees and costs is a
remedy available to an AJ. See Stull v. Department of Justice, EEOC
Appeal No. 01942827 (June 15, 1995).
The circumstances relating to the imposition of sanctions are as follows:
upon learning that W-1 could not attend the hearing to be held at the
agency because she could not bring her children and did not have a
baby sitter available, the AJ changed the location to the EEO District
office and the date from July 18 to July 22, 1996, so W-1 could bring
her children. The agency representative was so informed but simply
had the agency notify W-1 of the new date and location of the hearing,
assuming that complainant's counsel would inform W-1 that she could
bring her children to the hearing. When W-1 did not appear at the
hearing, however, this caused the hearing to be delayed for one and a
half hours. Consequently, the AJ imposed, as a sanction on the agency,
attorney's fees for the time wasted by complainant's attorney owing
to W-1's nonappearance. Although the agency contended that its only
responsibility was to notify W-1 of the new date and time of the hearing,
which it did, the AJ imposed the sanctions because she had stressed to
the agency representative on July 18, 1996, the agency obligation to
provide for W-1's attendance.
The Commission notes that under 64 Fed. Reg. 37,644, 37657 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. �1614.109(e)),
the regulations state only that �[a]gencies shall provide for the
attendance at a hearing of all employees approved as witnesses by an
administrative judge� (italics added). Where, as here, an approved
witness within the agency's control fails to appear, the burden is on
the agency to demonstrate that there was good cause for the failure.
Wienecke v. Department of Health and Human Services, SSA, EEOC Appeal
No. 01941659 (May 2, 1995).
The agency representative testified that she did not tell W-1 that
she could bring her children as she believed �in good faith� that
complainant's attorney, who had initiated the request to change the
location of the hearing, �would tell her own witness that she could bring
the children.� The Commission finds, however, that this reason does not
suffice as �good cause� for the failure of W-1 to appear under Wienecke,
supra, in light of the fact that the AJ had stressed to the agency
representative the agency obligation to provide for W-1's attendance,
and the agency representative knew that W-1 would not appear unless she
was told that she could bring her children to the hearing.
The agency contends that it is responsible only for making its employees,
and not their children, available to testify at a hearing. In support
of this contention, we note that the above regulation applies only
to agency employees and not to their dependents. Yet we further note
that EEOC Management Directive (MD)110, as revised, November 9, 1999,
also states that the agency responsibility at the hearing stage includes
not only �ensuring the appearance� but also the �travel arrangements
to the hearing site of approved witnesses who are federal employees�
(Chap. 7 ,II, B, 7-3) (italics added). In this regard, we find that
the agency representative knew that W-1 would not appear at the hearing
unless she could bring her children as part of the travel arrangements,
and that the AJ had stressed to the agency representative the agency
obligation to provide for W-1's attendance, which would necessarily
entail providing for the attendance of W-1's children as well, when
W-1 could not procure a babysitter. Therefore, we determine that the
AJ did not exceed her authority in imposing sanctions upon the agency
when W-1 failed to appear, since it was the agency's responsibility,
and not that of complainant's counsel, to ensure W-1's attendance at
the hearing by informing her that she could bring her children..
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, the Commission
AFFIRMS in part and REVERSES in part the FAD and imposes sanctions against
the agency for the failure of W-1 to appear at the hearing, as previously
recommended by the AJ. The complaint is hereby REMANDED to the agency for
further processing in accordance with this decision, the following Order,
and the subsequent paragraphs preceding the Statement of Rights on Appeal.
ORDER (C1092)
The agency is ORDERED to take the following remedial action:
1. In accordance with the sanctions imposed by the AJ in her RD, the
agency shall pay to complainant's attorney the attorney's fees for two
hours time spent in connection with the failure of W-1 to appear at the
hearing on July 22, 1996. The attorney shall submit a verified statement
of the time spent and the resulting fee to the agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations --
within thirty (30) calendar days of the decision becoming final.
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 verifying
that the agency paid to complainant's attorney the attorney's fees
recommended by the AJ.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. ��1614.407, 1614.408) and 29 C.F.R. �1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. ��1614.407 and 1614.408. A
civil action for enforcement or a civil action on the underlying complaint
is subject to the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE
FILED WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30)
CALENDAR DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR
DAYS OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the 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 the 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 the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
December 3, 1999
DATE Carlton
M. Hadden, Acting Director
Office
of
Federal
Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.