0720050032
02-28-2007
Kilja Hahn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Kilja Hahn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 07200500321
Hearing No. 340-2002-03003x
Agency Nos. 4F-907-0098-01 & 4F-907-0168-00
DECISION
Following its November 23, 2004 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's finding of retaliation in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ. For the following
reasons, the Commission REVERSES the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Distribution Clerk, PS-5, at the agency's Downey Post Office
facility in Downey, California. On August 25, 2000, complainant filed
an EEO complaint, amended on February 7, 2001, alleging that she was
discriminated against in violation of Title VII, Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq. on the bases of race (Asian), national origin (Korean), sex
(female), disability, age (D.O.B. December 14, 1944) and in reprisal
for prior protected activity (arising under Title VII) when:
1. on a continuing basis for a three year period, the Acting Supervisor
treated the complainant differently and subjected her to a hostile work
environment, culminating in an incident on May 17, 2000 in which he
yelled at her and followed by additional incidents in June 2000; and
2. on January 2, 2001, the complainant was cleared for work by her doctor,
but was told to go home, see the agency doctor and subsequently told
she could not return to work.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ issued a Notice and Order on August 23, 2004,
in which she defined the scope of the hearing and specified that the claim
was one of harassment based on race/national origin and retaliation and,
in effect, dismissed the bases of sex, age and disability.2 The AJ held a
hearing on August 25, 2004 and subsequently issued a decision finding that
complainant had not been discriminated against on the bases of race and
national origin, but finding that she had been subject to retaliation.
The AJ ordered the agency to: 1) conduct EEO training consisting of a
minimum of two hours for all managers and supervisors at the facility;
2) take appropriate preventative steps to ensure that appropriate action
is taken when notified of claims of retaliation; 3) notify the agency
human resources and labor relations departments, EEO counselors and
contract investigators that alleged responsible management officials
should not solicit witness statements directly from subordinates nor
comment directly to subordinates concerning evidence they have provided;
4) pay complainant compensatory damages in the amount of $500.00; and 5)
post a notice at the facility.
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to reverse the agency's final order
because the AJ's factual findings are supported by substantial evidence,
and the agency's arguments on appeal do not persuade us that the AJ's
conclusions of law should be disturbed. The agency is directed to comply
with the Order below.
ORDER
The agency is ordered to carry out the following within sixty (60)
days of the date this decision becomes final :
1. Conduct EEO training consisting of a minimum of two (2) hours for all
managers and supervisors at the facility, encompassing the employees'
responsibilities with respect to prohibiting and refraining from
retaliation in the workplace, including conduct during EEO counseling
and investigations;
2. Consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. 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. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s); and
3. Pay complainant compensatory damages in the amount of $500.00.
POSTING ORDER (G0900)
The agency is ordered to post at its Downey Post Office facility in
Downey, California 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.
ATTORNEY'S FEES (H0900)
If complainant 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 (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
2-28-07
__________________
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,
as amended, 42 U.S.C. � 2000e et seq. has occurred at the United States
Postal Service's Downey Post Office in Downey, California (hereinafter
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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
A manager at this facility was found to have engaged in conduct likely
to deter employees from pursuing their rights under the EEO process.
The facility was ordered to provide training to all managers and
supervisors regarding their obligations to protect the integrity of the
EEO process, and to pay the complainant proven compensatory damages.
This 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.
This facility will comply with federal law and 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 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 As neither party has contested the AJ's ruling dismissing the bases
of sex, age and disability prior to the hearing, we decline to review
this aspect of the decision.
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0720050032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0720050032