0720090017
03-18-2009
Greg R. Weldon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Greg R. Weldon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720090017
Hearing No. 480-2007-00501X
Agency No. 4F-926-0098-07
DECISION
INTRODUCTION
Following its November 17, 2008 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ. For the
following reasons, the Commission REVERSES the agency's final order.
BACKGROUND
General
During the relevant period, complainant worked as a Carrier Technician
at a Bellflower, California facility of the agency. His duties included
casing mail for an hour or two at the beginning of his tour, and then
conducting further mail preparation and walking to deliver the mail for
the remainder of his tour (about six hours). In a formal EEO complaint
dated March 24, 2007, complainant alleged that the agency discriminated
against him on the basis of disability (feet, shoulder & neck problems)
when, since January 29, 2007, it denied him reasonable accommodation
by requiring him to ignore his physician's treatment recommendations.
Complainant stated that, in 2003, he began working a modified schedule
where he would go home to elevate and rest his feet for ninety minutes
to two hours between casing and delivering mail. Complainant stated
that the modified schedule allowed him to
work eight hours per day/forty hours per week between 2003 and the
time a new customer service supervisor (S1) arrived in January 2006.
He added that S1 consistently requested medical documentation that she
ultimately deemed insufficient. Complainant stated that S1 reduced his
hours, in about January 2007, to six per day and, in June 2007, to no
more than four hours per day. The agency conducted an investigation of
complainant's claim. At the conclusion of its investigation, it informed
complainant of his right to request a hearing before an EEOC AJ or an
immediate final agency decision. Complainant requested a hearing.
Hearing Stage
At the hearing stage, complainant withdrew the disability of shoulder
and neck problems as a basis. The assigned AJ held a hearing and, on
September 25, 2008, issued a decision finding discrimination based on
reprisal but not disability. The AJ found that complainant failed to
establish that he is an individual with a disability and, hence, entitled
to the protection of the Rehabilitation Act as such. Specifically, the AJ
concluded that complainant did not show that he was substantially limited
in the major life activity of walking because his limitation was that of
three to four hours at a time; or of working because he was not shown
to be unable to work in a class or broad range of jobs. Contrarily,
the AJ found that the agency retaliated against complainant, based on
his consistent request for accommodation in 2006 and 2007, when it failed
to inform him that he could take a two hour break daily at work.1
As relief, the AJ ordered back-pay and appropriate benefits (e.g., pay
grades, step increases) with interest from the date complainant stopped
working, November 2007; assignment as a letter carrier consistent with
June 2007 documentation from the agency's medical unit; $14,000.00 in
non-pecuniary compensatory damages; $0 in pecuniary compensatory damages
noting none were requested; training and discipline of the responsible
management official, S1; a posting notice of retaliation by the agency;
and attorney's fees in the amount of $33,344.00 (83.36 hours @ $400.00 per
hour) based on the "lodestar" method and costs in the amount of $417.82.
Specifically, regarding compensatory damages, the AJ stated that
complainant and his wife credibly testified that complainant experienced
migraine headaches, ulcers, depression, hypertension, and isolation
from his family as a result of the agency's retaliation. The AJ noted
that complainant visited a physician several times for his ailments
and received medical prescriptions that helped his symptoms gradually
improve beginning Spring 2008. As to attorney's fees, the AJ stated
that complainant is entitled to attorney's fees because he prevailed on
the basis of reprisal and reprisal is not factually distinct from his
originally-alleged basis of disability. Further, the AJ stated that
complainant's attorney provided declarations from four Los Angeles area
attorneys as evidence of a prevailing market rate of $400.00 per hour for
employment law attorneys with his experience and within their locale.
The AJ noted that the agency did not dispute the hourly rate. However,
the AJ did find the number of hours requested excessive and found 83.36
hours reasonably expended based on work performed between August 1,
2007 and September 9, 2008.
Final Order and Contentions on Appeal
Subsequently, the agency issued a final order rejecting the AJ's finding
of discrimination and ordered relief, and filed the instant appeal.
On appeal, the agency stated that the AJ inappropriately discounted
S1's testimony that, in June 2007, she did not offer complainant a two
hour break because he had declined a similar offer in 2006. Further,
the agency stated that back-pay should not commence on November 2007
because complainant was not "ready, willing and able" (refused) to
perform his duties on that date.
Complainant opposed the agency appeal, stating that he stopped working
in November 2007 because of the agency's retaliatory action against him.
He asked this Commission to uphold the AJ's finding of retaliation,
non-pecuniary damages in the amount of $14,000.00, reinstatement of of
a two hour break to rest his feet between casing and delivering mail,
attorney's fees in the amount of $33,340.00 and expenses in the amount
of $417.82. Further, complainant asked the EEOC to award an additional
$6,000.00 (fifteen hours at $400.00 per hour) in attorney's fees for
work on the instant appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Here, the Commission discerns no basis to disturb the AJ's findings. We
find that the findings of fact are supported by substantial evidence,
and that the AJ correctly applied the appropriate regulations, policies
and laws. Moreover, we find further that the AJ's remedial award is
appropriate.
Complainant alleged that the agency sought to make him disregard his
physician's recommendations following his consistent requests to take a
two hour break to elevate and care for his feet. Complainant alleged
reprisal. Complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997); a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment. Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).
After a careful review of the record, we find substantial evidence in the
record to show a nexus between complainant's prior EEO activity (request
for accommodation) and the agency failing to advise complainant he could
take a two hour break to elevate his feet at work following concurrence by
the medical unit physician. In this case, the AJ awarded $14,000.00 in
non-pecuniary, compensatory damages and we find said amount appropriate
after considering testimony by complainant and his wife, the amount of
medical evidence, the duration of his ailments, and Commission precedent.
See Hull v. Dep't of Veterans Affairs, EEOC Appeal No. 01951441 (September
19, 1998)(The Commission awarded complainant $12,000 in non-pecuniary
damages for emotional distress and hypertension experienced due to agency
harassment, as evidenced by complainant's testimony and some physician
visits.) Further, regarding attorney's fees, based on the "lodestar2,"
we find $33,344.00 appropriate. The record contains evidence to support
$400.00 as a reasonable hourly rate and 83.36 hours as the number of hours
reasonably expended. See generally, 29 C.F.R. 1614.501(e)(2)(ii)(B).
Further, we find that complainant is entitled to attorney's fees for
work performed at the appellate stage. EEO Management Directive 110,
Chapter 11, VI(A)(3) (November 9, 1999).
Based on the above, we REVERSE the agency's finding of no discrimination
based on reprisal. Consistent with this decision and the Order set
forth below, we direct the agency to take remedial action.
ORDER
The agency shall provide full relief in accordance with 29 C.F.R. �
1614.501, including the following remedial actions:
(1) To the extent that it has not already done so, within thirty
(30) calendar days of receipt of this decision, the agency shall allow
complainant to return to a Carrier Technician position at its Bellflower,
California facility pursuant to the terms and conditions outlined by
its medical unit in June 2007. Complainant shall have fifteen days
from receipt of the offer within which to accept or decline the offer.
Failure to accept the offer within the 15-day period will be considered
a declination of the offer, unless the complainant can show that
circumstances beyond his control prevented a timely response.
(2) Within sixty (60) calendar days of receipt of this decision, the
agency shall determine the appropriate amount of back pay with interest;
overtime pay, if any, with interest; and other benefits due complainant,
pursuant to 5 C.F.R. � 550.805, less any appropriate offsets. Said pay
and benefits shall be awarded from the date complainant last worked at the
agency in November 2007 until the date he returns as outlined in paragraph
(1). As indicated by the EEOC AJ, average pay and benefits during
calendar year 2006 shall be used for the aforementioned calculations.
The complainant shall cooperate in the agency's efforts to compute the
amount of back pay, overtime 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, overtime 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
enforcement or clarification must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
(3) The agency is directed to provide EEO training for the responsible
management official(s), addressing their responsibilities with respect to
eliminating discrimination in the workplace with an emphasis on reprisal
discrimination and the current state of law on employment discrimination.
(4) The agency shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination perpetrated against complainant. The agency shall report
its decision. If the agency decides to take disciplinary action, it shall
identify the action taken. If the agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose
discipline.
(5) The agency shall provide a detailed statement of all of its
calculations pertaining to the instant matter to complainant,
complainant's representative, if applicable, and the Commission.
It should also provide a copy of correspondence sent to various government
agencies regarding such calculations, e.g., Office of Personnel Management
and Social Security Administration.
(6) The agency shall pay $14,000.00 in non-pecuniary, compensatory
damages.
(7) The agency shall pay attorney's fees in the amount of $33,344.00
(83.36 hours @ $400.00 per hour) and costs in the amount of $417.82;
and calculate attorney's fees and costs related to the instant appeal
in accordance with the "Attorney's Fees" paragraph below.
(8) The agency shall post a notice in accordance with the paragraph
below.
(9) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's actions in compliance with this Order.
POSTING ORDER (G0900)
The agency is ordered to post at its Bellflower, California 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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 18, 2009
__________________
Date
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 Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq. has occurred at the United States Postal
Service's Bellflower, California facility (hereinafter 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have retaliated against an individual.
The facility was ordered to allow the individual to return to work within
the terms and conditions of a medical unit concurrence, award back pay and
other appropriate benefits, pay attorney's fees, and provide training
and consider discipline for the responsible management officials.
This facility 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.
This facility will comply with federal law and 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
1 We note that, in clarifying correspondence dated June 1, 2007,
complainant's orthopedic physician stated complainant could elevate his
feet up to hip level while seated for two hours at work, rather than at
home, and the agency's medical unit physician concurred.
2 See Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461
U.S. 424 (1983).
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Washington, DC 20013
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