01A30775
09-10-2003
Jimmy Fleming, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jimmy Fleming v. United States Postal Service
01A30775
September 10, 2003
.
Jimmy Fleming,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30775
Agency No. 4H-300-0254-99
Hearing No. 110--A0-8558X
DECISION
Complainant timely initiated an appeal from the final agency order
concerning his complaint of unlawful 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. Complainant alleged that the
agency had discriminated against him on the bases of race (African
American) and repirsal (prior EEO activity) when he was not selected
for the position of Manager of Labor Relations, and on the same bases
when he was not allowed access to his work place. Complainant also
alleged discrimination on the same bases concerning being humiliated,
threatened, and not shown respect at a mediation session. This appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
The AJ granted the agency's motion to dismiss the issue concerning
the mediation session, finding that there was no jurisdiction
over what occurred during mediation sessions as such matters were
confidential. Complainant did not oppose the agency's motion to
dismiss the claim. Following a hearing, the EEOC Administrative Judge
(AJ) issued her decision finding discrimination as to the bases of
race and reprisal regarding the non-selection and denial of access to
the work place. The agency issued a final decision on July 12, 2002
rejecting the AJ's findings of discrimination. However, on August 29,
2002 the agency rescinded that decision and issued a new one indicating
that it was accepting and implementing the AJ's decision regarding
the non-selection. The agency's new final decision erroneously stated
that the AJ found no discrimination with respect to the other claims.
Complainant thereafter filed an appeal with the Commission, but did
not submit any arguments or comments.
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. Factual
findings issued without a hearing also are subject to de novo review,
but will be upheld if supported by the preponderant evidence of record.
After a careful review of the record, the Commission discerns no
basis to disturb the AJ's findings of discrimination, nor her awards
of compensatory damages and attorney's fees. The findings of fact are
supported by substantial and preponderant evidence, and the AJ correctly
applied the appropriate regulations, policies, and laws.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
affirms the agency's August 29, 2002 order with respect to the
non-selection and reverses the agency's final order with respect to
the denial of access to the work place. The matter involving comments
at the mediation session is dismissed. The agency is directed to take
corrective action in accordance with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
If it has not already done so, the agency shall retroactively promote
complainant to the position of Manager of Labor Relations or to one that
is substantially equivalent. The agency shall determine the appropriate
amount of back pay from July 30, 1999, with interest, and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The complainant 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 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 clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled �Implementation of the Commission's Decision.�
If it has not already done so, the agency shall post written notice
of the finding of discrimination as set forth in the below-entitled
paragraph, �Posting Order.�
If it has not already done so, within ninety (90) days of the date on
which this decision becomes final, the agency shall provide EEO training,
with emphasis on the provisions of the anti-discrimination statutes
prohibiting race discrimination and reprisal, to the responsible
management officials involved herein.
The agency shall consider taking disciplinary action against the
agency officials identified as being responsible for the discriminatory
non-selection and the denial of access to the work place. 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.
The agency shall tender to complainant $1,155 in medical expenses
and $3,000.00 for non-pecuniary expenses for a total of $4,155 in
compensatory damages.
The agency shall tender to complainant attorney's fees in the amount
of $13,365.69 for attorney's fees and costs.
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 complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Main Post Office, Atlanta, Georgia,
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 10, 2003
__________________
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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. 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 United States Postal Service, Main Post Office, Atlanta, Georgia,
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The United States Postal Service, Main Post Office, Atlanta, Georgia, has
been ordered place the affected individual into the position for which
he applied with back pay and other benefits, pay compensatory damages
and attorney's fees, and require the responsible management officials to
attend EEO training. In addition, the facility was ordered to submit
a compliance report to the Commission verifying the completion of all
ordered corrective action. The United States Postal Service, Main Post
Office, Atlanta, Georgia, 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.
The United States Postal Service, Main Post Office, Atlanta, Georgia,
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