0120081490
09-14-2009
H. Miki Kimshin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
H. Miki Kimshin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081490
Hearing No. 443-2007-00083X
Agency No. 1E-554-0005-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 28, 2008, final order concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. For the reasons which follow, the Commission
AFFIRMS the agency's final order.
At the relevant times herein, complainant was employed as a
Mail-Processing Clerk, PS-5 and in the agency's Minneapolis, Minnesota
Post Office.
In a formal EEO complaint filed February 12, 2007, complainant alleged
that the agency discriminated against her on the bases of race (Asian),
national origin (Korean), disability (back, depression), and in reprisal
for prior protected EEO activity1 when she was denied opportunities to
work holiday overtime six times between January 16, 2006, and January
15, 2007. Following an investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On October 15, 2007, the AJ
conducted a hearing and issued a decision on December 11, 2007, finding
that the agency discriminated against complainant on two dates, January
1 and February 20, 2006, and did not discriminate against complainant
on the other four dates. The agency issued its final action, agreeing
to implement the AJ's decision and remedies.2
Complainant held a modified position as a Mail Processing Clerk.
Her medical restrictions limited her to work three hours per day, five
days per week, while the remainder of her shift was charged to LWOP and
paid by Office of Workers Compensation Programs, Department of Labor
(OWCP).
The record reflects that an employee who did not work holidays received
leave pay for the number of hours he or she usually worked, and the pay
system automatically awarded eight hours; an employee who worked holidays
received holiday leave pay and either holiday work pay or exchange for
annual leave to be used at a later date. The record further reflects
that the amount of holiday pay tendered to an employee who does not work
is based upon the number of hours the employee would have been available
to work had it not been a holiday.
Through November 2006, complainant had received eight hours pay on
holidays, whether she worked or not; if she worked holidays, she worked
three hours and received eight hours holiday pay or eight hours leave,
because the system defaulted to eight hours. In November 2006, the
agency discovered its accounting error with regard to complainant
and corrected the system, giving her three hours pay and/or leave.
Complainant received the balance of her pay from OWCP.
The main thrust of complainant's appeal asked to restore her to her
prior situation where she received eight hours of holiday pay and leave
when she worked holidays. The AJ found that complainant is entitled
to compensation or leave for her hours worked, that is, three hours.
Also, she found that complainant was not similarly situated to employees
on other shifts.
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 Co. 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. We find
that the decision of the AJ accurately stated the facts and correctly
applied the pertinent principles of law. We therefore find no basis
to disturb the AJ's determination that the agency discriminated against
complainant based on her race and in reprisal in regard to working the
holidays on January 16 and February 20, 2006, and that the agency did
not discriminate against complainant on the remaining four dates.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order.
ORDER
To the extent that the agency has not already done so, it is ORDERED to
take the following actions:
A. Pay complainant as if she had worked for the holidays on January
16 and February 20, 2006;
B. Pay complainant $500.00 in non-pecuniary compensatory damages;
C. Provide training to those supervisors and managers who denied
complainant work for the holidays on January 16 and February 20, 2006.
The training should consist of four hours addressing these employees'
responsibilities with respect to eliminating discrimination in the
federal workplace, and should place special emphasis on prevention and
elimination of discrimination because of race or prior EEO activity.
The Commission does not consider training to be a disciplinary action.
D. Consider taking disciplinary action against the subordinate
employee identified as being responsible for the discriminatory harassment
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.
E. Provide a report of compliance as directed below.
POSTING ORDER (G0900)
The agency is ordered to post at Minneapolis, Minnesota Post Office
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 (S0408)
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 this decision. 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 (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
September 14, 2009
Date
1 Complainant's prior EEO activity concluded with a settlement agreement
in August 2006.
2 The Commission exercises its discretion to review only the issues raised
in the complainant's appeal. Equal Employment Opportunity Management
Directive 110, Chapter 9, Section 10 (November 9, 1999).
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0120081490
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081490