01983209
09-14-2000
Kedra Richards v. United States Postal Service 01983209. September 14, 2000 . Kedra Richards, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kedra Richards v. United States Postal Service
01983209.
September 14, 2000
.
Kedra Richards,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01983209
Agency No. 1C-151-1009-96
Hearing No. 170-96-8448X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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. <1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges
she was discriminated against on the bases of sex (female) and race
(Black) when: (1) in June of 1995, her employment as a Transitional
Employee (TE) Clerk was terminated and she was reappointed as a Casual
Clerk; and (2) in October of 1995, she was not reappointed or converted
from a Casual Clerk to a TE Clerk.
For the following reasons, the Commission AFFIRMS the agency's final
decision and REMANDS this matter to the Philadelphia District Office
for a determination on the issue of compensatory damages.
The record reveals that complainant, a transitional employee at the
agency's Pittsburgh Processing and Distribution Center (PDC), filed
a formal EEO complaint with the agency on January 4, 1996, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received 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 with respect to issue 1 and no discrimination
with respect to issue 2.
The AJ found the following facts proven in the record: Complainant was
appointed to the PDC as a TE on January 28, 1995 not to exceed September
21, 1995 or 359 days. The complainant had trained and was qualified
on both the flat sorter machine (FSM) and the small parcel bundle
sorter (SPBS), but not on the letter sorting maching (LSM). During her
tenure with the PDC, however, complainant was primarily assigned to the
FSM. Complainant and other TE clerks were informed that the number of
TE Clerks who were assigned to the PDC had to be reduced for agency
compliance with its national labor agreement. By letter dated June
13, 1995, complainant, then assigned to the FSM area, received notice
that her TE Clerk appointment was terminated effective June 16, 1995.
That notice further stated that effective June 24, 1995, complainant would
be reappointed to the PDC as a casual clerk assigned to the same area.
Two TE Clerks (C1 and C2) (both White males) who were assigned to the FSM
area, received a termination and reappointment notice also dated June 13,
1995 on behalf of complainant's supervisor (RMO).
In October, 1995, six casual clerks (five White males and one White
female), who were previously TE Clerks, were reconverted or reappointed
to the TE Clerk positions and assigned to the SPBS area. Complainant
remained a Casual Clerk until her reappointment to a TE Clerk position
in June, 1996.
The AJ found that complainant did not establish a prima facie case
of race or sex discrimination with respect to the agency's failure
to reappoint her to a TE clerk position in October, 1995 (Issue 2).
Specifically, the AJ found that complainant had failed to show that she
was similarly situated to the White agency employees reconverted to TE
Clerks in October, 1995 whom she had cited. The record reveals that
the casual clerks who were reconverted to TE Clerks in October, 1995 had
been primarily assigned to the SPBS prior to October, 1995. The record
also shows that complainant rarely worked the SPBS area. In addition,
the record shows that complainant was assigned to a different operational
area under a different supervisor from the comparative employees cited.
Lastly, the record shows that in October, 1995, positions were vacated by
regular or career agency employees in the SPBS area, suggesting that the
comparison employees' SPBS experience was the basis for their reconversion
to TE Clerks in October, 1995.
However, the AJ found that complainant had established a prima facie
case of sex and race discrimination with regard to the termination of
her TE appointment and reappointment to a Casual Clerk position in June,
1995 (Issue 1) since agency employees outside her protected group were
retained as TE Clerks assigned to the FSM area after the complainant's
TE appointment was terminated in June, 1995.
The AJ also found that the agency failed to articulate a legitimate
non-discriminatory reason for its employment decision. The record clearly
established that RMO made the decision as to which TE Clerks to retain
or convert to casual clerks. Since RMO did not testify<2> and no agency
witness could proffer the basis of RMO's decision to retain certain TE
Clerks and convert others to Casual Clerks, the AJ determined that the
agency failed to articulate a legitimate non-discriminatory reason for
its actions. Accordingly, the agency found that complainant met her
burden of proving race and sex discrimination with respect to Issue 1.
The agency's final decision implemented the AJ's decision. On appeal,
complainant argues that the AJ erred in finding that she failed to
present a prima facie case of discrimination with respect to Issue 2.
In addition, complainant argues that the remedies awarded by the AJ are
insufficient. Complainant contends that she is entitled to compensatory
damages of $50,000.00.
Pursuant to 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 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 properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
race or sex with respect to Issue 2. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision on the issue of liability.
With respect to the issue of compensatory damages, the Commission has
clearly held that a complainant may raise a claim for compensatory
damages at any time in the administrative process up to, and including,
the appeal stage, but not thereafter. Simpkins v. USPS, EEOC Request
No. 05940887 (September 28, 1995). Since complainant has timely raised
a claim for compensatory damages, she is entitled to a supplemental
investigation where complainant must provide evidence that she has
incurred such damages. Thereafter, the agency must address the validity
of the claim. See Jackson v. USPS, EEOC Appeal No. 01923399 (November 12,
1992), aff'd, EEOC Request No. 05930306 (February 1, 1993). Accordingly,
we remand this matter to the Hearings Unit of the Philadelphia District
Office to render a determination on compensatory damages.
ORDER
The agency is ORDERED to take the following remedial action:
(1) The agency shall take reasonable steps tailored to cure or correct
the particular source of the identified discrimination and to minimize
the chance of its recurrence, including but not limited to providing EEO
sensitivity training to all personnel at the PDC to ensure that neither
complainant nor any other employee is subjected to discrimination in
the future.
(2) The agency shall determine the appropriate amount of back pay,
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501,<3> for the period from the date of the termination of her
TE appointment in June, 1995 to the date of her reappointment to a
TE Clerk position in June, 1996, no later than sixty (60) calendar
days after the date this decision becomes final. 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 complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. 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."
(3) The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Philadelphia District Office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 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.
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 evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Pittsburgh Processing and
Distribution Center 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 (K0800)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 14, 2000
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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. 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 United States Postal Service, Pittsburgh Processing and Distribution
Center (�Facility�), supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Facility has been found to have discriminated on the basis of sex
(female) and race (Black) when a Transitional Employee was terminated,
and reappointed to the position of Casual Clerk in June, 1995.
The Facility has been ordered to: (1) issue an appropriate award of
back pay and benefits; (2) issue an appropriate award of compensatory
damages, if it is determined that complainant is so entitled; and
(3) award reasonable attorney's fees and costs. The Facility 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 Facility 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 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record reveals that RMO had retired prior to the investigation of
this matter.
3 Back employee benefits shall include, but are not limited to, seniority,
step increases, and leave accrual.