01970691
11-25-1998
Jan Pacheco, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast/New York Metro), Agency.
Jan Pacheco v. United States Postal Service
01970691
November 25, 1998
Jan Pacheco, )
Appellant, )
)
v. ) Appeal No. 01970691
) Agency No. 4B-028-1052-95
William J. Henderson, ) Hearing No. 160-95-8670X
Postmaster General, )
United States Postal Service, )
(Northeast/New York Metro), )
Agency. )
______________________________)
DECISION
On October 29, 1996, Jan Pacheco (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated October 21,
1996, concluding she had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq., the Age Discrimination in Employment Act (ADEA) of 1967, as
amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In her complaint, appellant had
alleged that officials at the agency's Westport, Massachusetts, Post
Office discriminated against her on the bases of her sex (female), age
(DOB: 01/01/53), disability (back injury/stress & depression)<1>, and/or
reprisal for engaging in prior EEO activity, when, since December 1994,
she was subjected to ongoing harassment by management, culminating in the
termination of her employment as a Transitional Employee (TE), effective
February 3, 1995, for alleged falsification of her employment application.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
The record establishes that appellant was hired by the Westport Post
Office as a TE effective October 1, 1994. On December 14, 1994,
appellant injured her back at work and thereafter was provided with
limited duty assignments. In January 1995, the Westport Postmaster
claimed to have discovered that appellant failed to reveal that she had
been convicted of driving under the influence of alcohol in employment
applications she had completed in 1993 and 1994. As a result, effective
February 3, 1995, appellant was terminated for alleged falsification of
her employment application.
On March 11, 1995, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On September 20, 1996, the AJ issued a decision without a hearing, finding
appellant had been discriminated against by the agency on each of the
bases alleged. In reaching this conclusion, the AJ noted that the agency
had failed to comply with the discovery requests contained in a May 26,
1996 order issued by the AJ in response to appellant's motion to compel
discovery. The AJ provided the agency with an opportunity to show good
cause for its noncompliance, and the AJ ruled that the agency failed
to do so. The AJ then provided the agency with another opportunity
to comply with his discovery Order or, in the alternative, file a
motion showing good cause why the AJ should vacate or limit his Order.
The agency subsequently filed a motion for reconsideration, which the
AJ denied after reviewing all the agency's arguments. By Order dated
July 30, 1996, the agency was given ten days to comply with appellant's
discovery requests. On August 15, 1996, appellant filed a motion for
sanctions because the agency had not complied with the AJ's order.
The AJ provided the agency with an opportunity to show cause why sanctions
should not be imposed for its actions in this matter. After considering
the positions of both sides, the AJ held that the agency had not shown
good cause for failing to comply with his order. Moreover, the AJ
concluded that the agency "acted deliberately in refusing to provide
Complainant with relevant evidence in order to prove her claims, in
failing to state pertinent objections, in not filing timely motions, and,
most importantly, in refusing to comply with my Discovery Orders." As a
consequence, the AJ decided that the circumstances justified sanctioning
the agency by issuing a decision in appellant's favor.
On October 21, 1996, the agency issued its final decision, rejecting the
AJ's recommended decision, and entering a finding of no discrimination.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis
to disturb the AJ's finding of discrimination. Despite the agency's
arguments to the contrary, the Commission is unpersuaded that the AJ
abused his discretion in denying the agency's imposing sanctions when
the agency willfully refused to comply with the AJ's discovery orders.
The Commission concurs with the AJ's conclusion that the agency failed
to proffer adequate justification for its actions in this matter.
EEOC regulations provide its administrative judges with the power to
issue discovery orders. 29 C.F.R. �1614.109(c). The regulations further
provide, at 29 C.F.R. �1614.109 (d)(3)(iv), that when an agency fails,
without good cause shown, to respond fully and in a timely fashion
to discovery requests for documents, records, comparative data,
statistics, affidavits or the attendance of witnesses, the AJ, in
appropriate circumstances, may issue a decision fully or partially in
the complainant's favor. The Commission, after a careful review of the
record, finds the AJ in this case was well within his authority when he
sanctioned the agency when it "acted in a willful and deliberate manner"
in refusing to comply with his discovery orders, resulting in significant
prejudice to appellant's prosecution of her complaint.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of discrimination. In order to remedy appellant for its
discriminatory actions, the agency shall, comply with the following
Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make an unconditional offer of employment to
appellant of the position of TE Clerk in any postal facility within
commuting distance from appellant's home. If appellant accepts this
offer, she shall be provided any retraining necessary to perform in
the position.
(B) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award appellant back pay, with interest,
for all wages and benefits lost as a result of the her termination in
February 1994. The agency shall determine the appropriate amount
of back pay, interest and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501. The appellant shall cooperate in the agency's
efforts to compute the amount of back 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 and/or benefits, the
agency shall issue a check to the appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. The appellant may petition for enforcement
or clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled "Implementation of the Commission's
Decision."
(C) The agency shall post at the Westport, Massachusetts, 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.
(D) 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 of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. 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 this 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 this 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
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (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:
Nov. 25, 1998
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 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. Sect. 791 et seq., and the Age Discrimination in Employment
Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq., has occurred
at 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Westport, Massachusetts, Post Office supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Westport Post Office has been found to have discriminated against
the individual affected by the Commission's finding on the bases of her
sex, age and disabilities when she was terminated from her position
as a TE Clerk. The Commission has ordered that this individual be
reinstated with an appropriate back pay award. The Westport Post Office
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.
The Westport Post Office 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 While not raised in her original complaint, the administrative judge
in this matter permitted appellant to amend the complaint to add a claim
of disparate treatment because of her disabilities.