Karen Padgett, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionMay 2, 2000
01990351 (E.E.O.C. May. 2, 2000)

01990351

05-02-2000

Karen Padgett, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Karen Padgett v. United States Postal Service

01990351

May 2, 2000

Karen Padgett, )

Complainant, )

) Appeal No. 01990351

v. ) Agency No. 4-H-350-1133-96

) Hearing No. 130-97-8167-X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Region), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and Section

501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et

seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405). Complainant alleges she

was discriminated against on the bases of race (Black), sex (female),

physical disability<2> (bilateral carpal tunnel syndrome), and retaliation

(prior EEO activity) when on February 2, 1996, she was terminated from

her Transitional Employee (TE) position 268 days before the expiration of

her TE appointment. For the following reasons, the Commission REVERSES

the FAD.

The record reveals that complainant, a TE on limited duty at the agency's

Mobile, Alabama facility, filed a formal EEO complaint with the agency on

April 17, 1999, alleging that the agency had discriminated against her as

referenced above. At the conclusion of the investigation, complainant was

provided a copy of the investigative report and requested a hearing before

an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued

a decision finding discrimination on the basis of retaliation only. The

AJ concluded that complainant established a prima facie case of reprisal

discrimination because she had (1) submitted a formal EEO complaint on

May 5, 1995, naming the Postmaster (PM) as the responding management

official (RMO); (2) she was then subjected to an adverse condition of

employment, being terminated from her TE position on February 2, 1966,

before the expiration of her TE appointment; and (3) the time period

elapsing between her prior EEO activity and termination was short enough

(less than a year) to establish a causal connection.

The AJ further concluded that complainant established that, more

likely than not, the reasons provided by the agency were a pretext for

discrimination on the basis of retaliation. In reaching this conclusion,

the AJ found that the agency's contention that complainant's services were

no longer needed, as there was no productive work that she could perform

while on limited duty and the 91-day OWCP reappointment had expired,

was a pretext to mask discrimination. In this regard, the AJ noted that

the highest management official at complainant's former duty station (the

Manager) had testified that there still was productive work available for

complainant to perform within her restrictions and that she had, in fact,

been performing such productive work. To remedy the discrimination,

the AJ recommended that the agency provide complainant with applicable

back pay, with interest, together with all emoluments that would have

accrued for the remaining 268 days that were left in her appointment

period, as well as issuing a personnel form showing that complainant had

served the full 359-day appointment of a TE. However, the AJ also ruled

that complainant had not established that she was entitled to an award of

compensatory damages, citing Jackson v. United States Postal Service, EEOC

Appeal No. 01923399 (November 12, 1992). This case held that a complainant

must show documentary evidence that compensatory damages were incurred,

and that the damages are related to the alleged unlawful discrimination.

In this regard, complainant had testified at the hearing that once she was

terminated, her medical benefits from OWCP and the agency were cut off;

therefore she lacked the monies to buy the correct medicines prescribed

by her doctor for her condition and to receive other medical care. Hence,

she experienced undue pain and suffering as a result of her discriminatory

termination, but provided no documentary evidence that such was the case.

The agency's final decision rejected the AJ's findings of retaliation. The

agency argues that complainant was rehired after the termination of

her last TE appointment only because the PM was notified by OWCP that

complainant would have to be placed back on the rolls for an additional 90

days in order for them to complete a loss of wage-earning capacity (LWEC)

form on her. In view of this, the agency found the fact that additional

work was available after the 90-day period expired was insignificant.

On appeal, complainant contends that many agency witnesses committed

perjury and notes that the PM admitted during hearing testimony that

he could have kept the complainant longer than the 90 days required by

OWCP if there was productive work for her to do. Complainant also claims

compensatory damages for her pain and suffering as a result of her early

termination, and contends that the agency should have requested that she

supply evidence of the damage incurred as the result of her termination.

The agency made no contentions on appeal.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).

After a careful review of the record, the Commission finds that

the AJ's decision summarized the relevant facts and referenced the

appropriate regulations, policies, and laws, insofar as the AJ found that

complainant's early termination constituted retaliation. Accordingly,

it is the decision of the Commission to REVERSE the FAD.<3>

With respect to the issue of compensatory damages, an agency must

request from the complainant proof that damages were incurred, and

proof linking the damages to the alleged discrimination, prior to

issuing a final decision. This, however, was not done. See Papas

v. United States Postal Service, EEOC Appeal No. 01930547 (March. 17,

1994). Similarly, where as here, the complainant alleges that she is

entitled to compensatory damages and the Commission enters a finding of

discrimination, the complainant must be given an opportunity to submit

evidence establishing her claim. To receive an award of compensatory

damages, a complainant must demonstrate that he or she has been harmed

as a result of the agency's discriminatory action; the extent, nature,

and severity of the harm; and the duration or expected duration of the

harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July

22, 1994); Compensatory and Punitive Damages Available under Section 102

of the Civil Rights Act of 1991, EEOC Notice No. N. 915.002 (July 14,

1992), at 11-12, 14.

The AJ found that complainant was not eligible for compensatory damages

in that she provided no documentary evidence under Jackson, supra, for

her mental, emotional, and physical distress brought on as a result of

her early termination. In another case, however, the Commission stated

that neither evidence from a health care provider nor expert testimony

in general is a mandatory prerequisite for recovery of compensatory

damages for mental and emotional distress, and that evidence may include

statements from the complainant. It emphasized, however, that the

absence of supporting evidence may affect the amount of nonpecuniary

damages deemed appropriate in specific cases. Lawrence v. United States

Postal Service, EEOC Appeal No. 01952288 (April 18, 1996).

Accordingly, the complaint is hereby REMANDED for further processing in

accordance with this decision, the following Order, and the subsequent

paragraphs preceding the statement of Rights on Appeal.

ORDER (D1199)

The agency is ORDERED to take the following remedial action:

1. The agency shall determine the appropriate amount of back pay

(with interest, if applicable) and other benefits due complainant,

to include a personnel form showing that complainant had served the

full 359-day appointment of a TE. This is to be done 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."

2. The Agency is directed to conduct sixteen (16) hours of training for

the supervisors and managerial personnel at its Mobile, Alabama facility.

The agency shall address these employees' responsibility with respect

to eliminating discrimination in the workplace and all other supervisory

and managerial responsibilities under equal employment opportunity law.

3. 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 verifying

that the corrective action has been implemented.

4. The issue of compensatory damages is REMANDED to the Hearings Unit

of the appropriate EEOC field office. Thereafter, the Administrative

Judge shall issue a decision on this issue in accordance with

64 Fed. Reg. 37,644, 37,657 (1999) (to be codified at 29 C.F.R. �

1614.109), and the agency shall issue a final action in accordance with

64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified at 29 C.F.R. �

1614.110) within forty (40) days of receipt of the Administrative Judge's

decision. The agency shall submit copies of the Administrative Judge's

decision and the final agency action to the Compliance Officer at the

address set forth below. As complainant was not represented by counsel

in the pursuit of her EEO claim, attorney's fees are not warranted in

the instant case.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Mobile, Alabama 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.

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 (M0300)

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); 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 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 (S1199)

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:

May 2, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

3 Inasmuch as the AJ found that the complainant was subjected to

retaliation by the agency, we need not address complainant's allegations

of race, sex, and physical disability discrimination.