01a00182
03-20-2000
John E. Brockdorff, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John E. Brockdorff, )
Complainant, )
)
v. ) Appeal No. 01A00182
) Agency No. 1K-206-0106-97
William J. Henderson, ) Hearing No. 120-99-6126X
Postmaster General, )
United States Postal Service, )
Agency. )
_______________________________ )
DECISION
Complainant filed the instant appeal from the agency's September 10,
1999 decision finding that the agency did not discriminate against
complainant based on complainant's race (Caucasian) and age, and in
retaliation for prior EEO activity.<1>
Complainant requested a hearing before an EEOC Administrative Judge.
An administrative judge issued a decision dated June 30, 1999 after
holding a hearing. The administrative judge defined the complaint as
alleging that complainant was discriminated against on the bases of race
and age and in retaliation for prior EEO activity, when on June 8, 1997,
the agency denied him the opportunity for a detail whereas the agency
gave details to three Black, younger managers. The administrative
judge found that complainant withdrew the claim of age discrimination.
The administrative judge also found that complainant had established by
a preponderance of the evidence that the agency discriminated against
complainant on the basis of race and in retaliation for prior EEO activity
when on June 8, 1997, the agency denied complainant the opportunity
for a detail whereas it gave a detail to one of three managers.
The administrative judge concluded that complainant failed to establish
such discrimination by a preponderance of the evidence when the agency
gave details to two other managers.
As equitable relief the administrative judge ordered:
That the United States Postal Service pay Complainant backpay being
the difference between EAS-22 and EAS-17 pay for the eight weekend
days he would have worked from June 8, 1997 to July 7, 1997; or in the
alternative, at Complainant's option, the Agency offer him the next
available weekend backup A/MDO detail for a period of thirty days,
but not both.
That the United States Postal Service post copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted and maintained for 60 consecutive days,
in conspicuous places, including all place where notices to employees
and applicants for employment are customarily posted. The Agency shall
take reasonable steps to ensure that said notices are not altered,
defaced or covered by any other material.
Regarding compensatory damages, the administrative judge found that
complainant �has not proved he has incurred any other pecuniary
compensatory damages in addition to costs.� The administrative judge
did state, however:
[T]he costs of processing an EEO complaint is a pecuniary loss that may
be recovered as compensatory damages. Complainant should provide the
Agency with an itemized listing of those costs incurred in the processing
of this EEO complaint.
The administrative judge also found that complainant failed to establish
that he was entitled to nonpecuniary damages. The administrative judge
specifically found: �Complainant did not make a sufficient connection of
the minimal distress he suffered with the discriminatory act occurring
in this case.�
In the agency's September 10, 1999 decision the agency adopted all
findings of no discrimination made by the administrative judge and
rejected the administrative judge's finding of discrimination on the
basis of race and in retaliation for prior protected activity.
On appeal, complainant contends that the administrative judge properly
found that complainant was discriminated against. Complainant does
not argue that the administrative judge incorrectly found that: (1)
complainant withdrew his claim of age discrimination; (2) complainant
was not otherwise discriminated against; or (3) that the administrative
judge's remedy was improper or
inadequate. On appeal, complainant requests an award for attorney's
fees and costs incurred in the filing of the instant appeal.<2>
The Commission has explained the following standard of review to be used
in appeals in which a hearing has been held before an EEOC Administrative
Judge:
Pursuant to 64 Fed. Reg. 37,644, 37659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). The AJ's [Administrative Judge's] legal
conclusions are reviewed de novo.
Maietta v. United States Postal Serv., EEOC Request No. 05990224 (Feb. 3,
2000).
The Commission finds that the administrative judge properly found that
complainant withdrew his claim of age discrimination. Complainant is not
arguing on appeal that he is still claiming discrimination on the basis
of age. Therefore, the claim of age discrimination is not at issue in
the instant appeal.
The Commission finds that there is substantial evidence in the record to
support the administrative judge's findings of fact regarding the two
details that were the subject of the administrative judge's finding of
no discrimination. The Commission agrees with the administrative judge
that complainant was not similarly situated to the two persons selected
for these two details and that the agency's explanation of choosing the
two detailees based on experience superior to complainant's experience
was legitimate and not pretextual.
The Commission finds that the administrative judge correctly determined
that complainant proved by a preponderance of the evidence that he
was discriminated against on the basis of race and in retaliation for
prior EEO activity when he was not provided an advancement opportunity
that was given to Coworker A. The agency admits that Coworker A's race
is African American. The administrative judge found that complainant
had filed 8 prior EEO complaints. The agency argues that complainant
had actually only filed 7 prior EEO complaints. Even if the agency
is correct, we still find that there is substantial evidence in the
record to support the administrative judge's factual finding that the
Senior Manager, Distribution Operations (Senior MDO) and the Manager
Distribution Operations (MDO), the two management officials involved in
making the decision to provide the advancement opportunity to Coworker A,
both knew of complainant's prior EEO activity. The agency admits that
the SMDO knew of complainant's prior EEO activity. The MDO stated in
an affidavit that she had no prior knowledge of complainant's prior EEO
activity �other than the workfloor rumors.� This statement, by itself,
is sufficient to support the administrative judge's conclusion that the
MDO had knowledge of complainant's prior EEO activity. Furthermore,
the agency admits that one of the complaints was ongoing in April 1997
(apparently the initial EEO Counselor contact date).
The administrative judge found the testimony by complainant to be
credible, but found that the testimony by the MDO to not be credible.
The administrative judge found that the MDO made the advancement
opportunity recommendations to the SMDO. The administrative judge
explained the basis of his credibility determination regarding the MDO:
[The MDO] was uncomfortable during her testimony, avoided eye contact
and sometimes seemed to shrink at some of the questions. She did not
appear to testify forthrightly. In contrast, both Complainant and [the
SMDO] appeared to testify truthfully and in a straightforward manner.
There were also several factual conflicts between Complainant and [the
MDO] and [the SMDO] and [the MDO's] testimony, all of which I resolve
in Complainant and [the SMDO's] favor . . .
Regarding the selection of Coworker A for an advancement opportunity,
the administrative judge found that the agency's reason for not choosing
complainant was that complainant had told the MDO that he did not want
to work weekends. The administrative judge found that this reason was
pretextual and was not worthy of credence. The administrative judge
found:
I have no doubt that [the MDO] told [the SMDO] that Complainant did not
want to work weekends because [the SMDO and the MDO] agree that is what
[the MDO] told her. That was where [the MDO's] credibility regarding
[Coworker A's] detail ended. There are several factual contradictions
between Complainant and [the SMDO] and [the MDO] and [the SMDO] which
are resolved in favor of Complainant and [the SMDO].
Complainant testified that he never told [the MDO] or anyone else he
would not work weekends as a backup A/MDO and even asserted [the MDO]
failed to ask him whether he would be willing to be backup A/MDO on
Tour 2. In contrast, [the MDO] testified that Complainant told him
he was not interested in working weekends as A/MDO. Complainant was a
more credible witness for several reasons. He testified forthrightly
and credibly, answering all questions in a truthful manner. . . .
In contrast, [the MDO] was not a credible witness. . . . She did
not testify credibly when she said she did not give [the SMDO] any
recommendations but only offered [the SMDO] a written list containing
the names of [Coworker B, Coworker A,] and Complainant. This testimony
directly contradicted [the SMDO] who testified that [the MDO] orally
recommended [Coworkers B and A] over Complainant. Since [the SMDO]
testiifed in a forthright and truthful manner and gave the impression
she expected [the MDO] to do her job by making such a recommendation,
I find that [the MDO] did not testify truthfully when she denied making
a recommendation to [the SMDO].
[The MDO] also did not testify credibly when she denied altering
Complainnat's March 1997 interim review and his September 1997
final appraisl. Initially, [the MDO], the rater, gave Complainant
a �Far Exceeded Objectives/Expectations� in both reviews. However,
Complainant later found both reviews were altered and reduced to �Met
Objectives/Expectations.� [The MDO], as the rating official, and [the
SMDO], as the reviewing official, were the two individuals most likely
to have made the alterations but both denied making them. [The SMDO]
testified credibly that she never knew that Complainant did anything
other than meet his objectives and that �Far Exceeded� ratings were
a surprise to her. She said she would have known about such a rating
for merit pay increase purposes. She also knew, unlike [the MDO], that
�Far Exceeded� ratings were not given on interim reviews. In contrast,
[the MDO] was uncomfortable and did not appear to testify truthfully when
she denied altering the 1997 interim and final reviews. Consequently,
I find that [the MDO] did not testify truthfully when she denied altering
the reviews.
Given these lapses in [the MDO's] credibility, it is not difficult to
resolve the crucial conflict in testimony, whether Complainant told
[the MDO] he did not want to work weekends, in Complainant's favor. . . .
. . . .
Something more sinister was occuring. It was a successful attempt to keep
Complainant from advancing in the Agency. It prevented [the SMDO] from
awarding the June 1997 weekend backup A/MDO to Complainant. Since [the
MDO] offered no explanation for preventing Complainant's advancement,
an inference of race and reprisal discrimination is drawn as the only
credible explanation for [the MDO's] behavior.
An inference of race and reprisal discrimination is also drawn from
[the MDO's] failure to offer any explanation for the alterations [of the
performance reviews]. . . . [The MDO] had no criticism of Complainant's
performance and agreed that he �Far Exceeded� his objectives. There was
no other reason for [the MDO] to alter the reviews except race and
reprisal discrimination.
The Commission finds that there was substantial evidence to support the
administrative judge's factual findings that complainant's performance
reviews had been negatively altered and that the MDO did not recommend
complainant for an advancement opportunity to the SMDO. After reviewing
the record, the Commission finds that the administrative judge correctly
determined that complainant showed by a preponderance of the evidence
that the decision to deny an advancement opportunity to complainant,
and to instead provide that opportunity to Coworker A, was motivated
by discrimination on the basis of complainant's race and in retaliation
for his prior protected activity.
The Commission finds that the portion of the remedy set forth by the
administrative judge providing complainant with 8 days of backpay for
the weekend detail or alternatively providing complainant with the next
available weekend backup A/MDO detail for a period of thirty days, was
improper. The Commission agrees with the agency's finding in its final
decision that Coworker A �did not cover the A/MDO position during June
1997 . . .� The Supervisor Distribution Operations (SDO) stated in her
affidavit that she, the SDO, was detailed to the position in question on
Sundays �[u]p until about July 4, 1997. . ." In an affidavit, the SMDO
corroborates the SDO by stating that the SDO �had covered the position
of MDO regularly, until the later part of June 1997.�
The SMDO also stated in an affidavit:
In June 1997, I released [the MDO] for approximately thirty days to
train an employee at the Waldorf DDC . . . [Coworker B] was detailed
to the position of Manager Distribution Operations . . . [Coworker A]
was brought over to cover as Mail Flow Coordinator on Tour 2, as a
training opportunity for upward mobility, based on her interest and work
performance.
The Plant Manager also stated in an affidavit that Coworker A was
given the opportunity to cover as Mail Flow Coordinator on Tour 2.
The implication in the affidavits is that the advancement opportunities
at issue in the complaint were provided for 30 days. The Commission
finds that the advancement opportunity actually denied complainant due
to discrimination was when Coworker A was �covered� the position of Mail
Flow Coordinator on Tour 2. Therefore, the appropriate remedy is for
the agency to place complainant in the position of Mail Flow Coordinator
as a training opportunity for 30 days. The Commission shall order the
agency to provide complainant with such a training opportunity.
The Commission finds that the administrative judge erred as a matter
of law when he found that complainant's �costs of processing [the] EEO
complaint� could be awarded as compensatory damages. Such costs are
awardable, if appropriate, pursuant to the regulation set forth at 64
Fed. Reg. 37,644, 37,659 - 37,660 (to be codified as and hereinafter cited
as 29 C.F.R. � 1614.501(e)). Therefore, because such costs are already
allowed as a remedy under Title VII, such costs can not be considered
compensatory damages. See generally Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. N915.002 at n. 9 (July 14, 1992) (citation omitted). Furthermore,
because complainant was not represented by an attorney prior to the
hearing, he can not be awarded costs. See 29 C.F.R. � 1614.501(e).
The administrative judge did not find that complainant was represented by
an attorney prior to the issuance of his decision. The Commission finds
no reason to disturb the administrative judge's finding that complainant
was not entitled to any other compensatory damages.
The Commission finds that complainant has indicated that he was
represented by an attorney in the filing of the instant appeal.
Because of our finding that complainant was discriminated against in
violation of Title VII, complainant is entitled to attorney's fees
for services performed by complainant's attorney in the filing of this
instant appeal. 29 C.F.R. � 1614.501(e). Therefore, the agency shall
award appropriate attorney's fees and costs for services performed in
the pursuit of the instant appeal, in accordance with the Attorney's
Fees order provided herein.
The Commission finds that the posting remedy provided by the
administrative judge to be appropriate and we affirm this portion of
the remedy provided by the administrative judge.
The agency's decision finding no discrimination regarding two of the
advancement opportunities is AFFIRMED. The agency's decision finding no
discrimination regarding the advancement opportunity involving Coworker
A is REVERSED and we REMAND the matter so that the agency may comply
with the remedial relief provided for herein.
ORDER
The agency shall:
Provide complainant in writing with the opportunity to cover, within 30
days of the date this decision becomes final, as Mail Flow Coordinator
(as a training opportunity) for 30 days.
Comply, within 30 days of the date this decision becomes final, with
the posting order as set forth in the administrative judge's corrective
action in the June 30, 1999 decision.
Submit evidence showing that the agency has complied with provisions 1 and
2 of this Order, including a copy of the letter offering complainant the
opportunity to cover as Mail Flow Coordinator and a copy of the posting
notice, to the Compliance Officer referenced herein.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
March 20, 2000
______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant does not request attorney's fees for services provided
prior to the filing of the instant appeal. Complainant did not list a
representative on his complaint form. The hearing transcript indicates
that complainant was proceeding pro se.