0720090020
02-20-2009
Kim M. Brantley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kim M. Brantley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720090020
Hearing No. 530200700165X
Agency No. 1C192000605
DECISION
Following its September 23, 2008 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 (AJ) finding of discrimination 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.
Specifically, the agency rejected the finding that complainant was a
victim of reprisal. 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 mail handler at the Philadelphia Bulk Mail Center. Up until December
2004, he was primarily assigned 204B acting supervisor duties. On
November 3, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when he was
denied entry into the Associate Supervisor Program (ASP) on August 8,
2006. At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing, which was held on September 24, 2007. The AJ
issued a decision on August 12, 2008. The agency subsequently issued a
final order rejecting the AJ's finding that complainant proved that he
was subjected to reprisal as alleged.
Complainant applied for the ASP in 2006. At the time, he had two prior
EEO complaints pending. The record indicates that once a candidate was
accepted into the program, he or she completed a 16-week training program
and was then appointed to an EAS-15 supervisor position. Complainant
passed the required examination for the program in 2005, and the
scores were good for two years. Complainant received "acceptable"
ratings (the other ratings were "don't know" or "unacceptable") in
each of 10 job dimensions by his supervisor. His supervisor also noted
his excellent attendance record, but made reference to a suspension
that he had grieved. Complainant pointed out that the suspension had
been removed from his record as the result of a grievance, and gave his
supervisor a copy of the decision. The supervisor acknowledged the error
and scheduled complainant for an interview with the Review Committee,1
which then favorably referred complainant to the Advisory Panel. Eighteen
other candidates were also referred to the Advisory Panel.
The Advisory Panel, which was aware of complainant's prior protected
activity, rejected complainant for the program. The Advisory Committee was
critical of complainant's response when he was called a 'fat black nigger'
by a co-worker in 2005 - the matter that resulted in the suspension that
was later removed from his record through the grievance process. The AJ
found that no manager could articulate what complainant had done wrong
in this incident. It appears that complainant responded to the "big fat
nigger" remark with an inappropriate retort, but walked away. When he
reported the incident to management, he was given a 14 day suspension.2
However, to the extent complainant was alleged to have used profanity, the
AJ found that complainant presented credible testimony that managers used
profanity on a frequent basis to subordinates. The Advisory Panel also
claimed complainant was disciplined for a computer infraction. However,
the AJ again determined that management failed to explain the supposed
misconduct with the computer and the AJ found that complainant presented
credible testimony that similar conduct was tolerated with others.
Finally, the AJ noted that no other employee's record was reviewed by
the Advisory Panel and that every other candidate was placed in the ASP.
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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that substantial evidence of record supports the findings of the AJ
that complainant was retaliated against as alleged in his complaint.
The agency did not justify its reasons for not accepting complainant
into the ASP program. The Commission finds that the record supports the
conclusions of the AJ that the Advisory Panel went out of its way to
find justification not to admit complainant to the ASP, and exaggerated
the significance of complainant's alleged misconduct. The agency's
decision is reversed.
With respect to the award of compensatory damages in the amount of $7,000,
the Commission finds that $7,000 is an appropriate amount of compensatory
damages, as complainant presented sufficient evidence to establish that
the agency's actions caused his emotional distress and the disruption of
his home life. See, e.g., White v. Department of Veterans Affairs, EEOC
Appeal No. 01950342 (June 13, 1997)($5,000 in non-pecuniary damages where
the complainant with sparse medical evidence asserted that he experienced
emotional distress as a result of harassment); Benson v. U.S. Department
of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996)($5,000 in
non-pecuniary damages where the complainant, his relatives, and coworkers
asserted that complainant experienced embarrassment and humiliation due
to various incidents of discrimination); Magestro v. Department of Health
and Human Services, EEOC Appeal No. 01995560 (February 21, 2002)($8,000
in non-pecuniary damages where complainant received a fully successful
performance rating and he and a friend asserted that he experienced mental
anguish, sleeplessness, anxiety, stress, depression, and humiliation).
Accordingly, the agency's final order rejecting the AJ's finding of
unlawful reprisal is reversed and the matter is remanded to the agency for
the provision of remedies in accordance with the Order set forth below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
1. The complainant shall be admitted to the next ASP class, or shall be
the sole trainee if no class begins within 3 months of this decision
becoming final. However, complainant's records shall be amended to
reflect that he served successfully as a trainee, then as a permanent
supervisor following the training period, retroactive to the dates he
would have had he had been accepted into the ASP in August 2006.
2. Following his training period, complainant shall be offered
a supervisory position in one of his preferred facilities in the
Philadelphia area.
3. The agency shall reimburse complainant for any lost wages incurred as a
result of his rejection from the August 2006 ASP class. The agency shall
determine the appropriate amount of back pay (the difference between his
salary as a mail handler and his appointment as a supervisor following the
August 2006 ASP training period), 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."
4. Within forty-five (45) days of this decision becoming final, the
agency shall pay complainant the sum of $7,000 in compensatory damages.
5. Management officials involved herein, including all of those on the
Advisory Panel, shall take four hours of training on retaliation.
6. The agency shall consider taking disciplinary action against the
managers on the Advisory Panel. 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 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 Philadelphia Bulk Mail Center
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.
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 (K1208)
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 77960, Washington,
DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 20, 2009
__________________
Date
1 The Review Committee reviewed a candidate's records for suitability,
interviewed the candidate regarding KSAs, and if successful, the candidate
was recommended to the Advisory Panel.
2 The AJ noted that complainant filed an EEO complaint on the suspension
and the matter was settled.
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0720090020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720090020