Greg R. Weldon, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 18, 2009
0720090017 (E.E.O.C. Mar. 18, 2009)

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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