01a00313
04-26-2000
Lisa Kahn, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.
Lisa Kahn, )
Complainant, )
) Appeal No. 01A00313
v. ) Agency No. 4G-760-0099-97
) Hearing No. 310-98-5373X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas), )
Agency. )
____________________________________)
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, as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 sex
(female) and age (DOB: 4/10/49) when, on or about December 13, 1996, she
was required to either accept a maintenance position at a lower grade
or be terminated. For the following reasons, the Commission REVERSES
the agency's final decision.
The record reveals that complainant, a PTF City Letter Carrier, at the
agency's Arlington, Texas facility, filed a formal EEO complaint with
the agency on March 29, 1997, alleging that the agency had discriminated
against her as referenced above.
The relevant facts of the case are as follows: on or about May 18, 1996,
complainant backed into a parked vehicle while delivering mail. The
agency's Accident Review Board determined the accident was preventable.
By letter dated May 23, 1996, complainant was notified she was terminated
for unsatisfactory performance. The termination was later canceled.
On or about November 13, 1996, a vehicle backed into complainant's
postal vehicle. The agency's Accident Review Board determined that the
accident was preventable. On December 13, 1996, complainant's supervisor
offered complainant the following two choices: (a) accept a lower graded
Maintenance position; or (b) termination. Complainant accepted the
maintenance position and filed the subject complaint.
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. The AJ concluded that complainant established
a prima facie case of age discrimination in light of complainant's
credible testimony that her supervisor remarked to her that two other
female co-workers performed their tasks faster than complainant did
because they were younger and in better physical condition.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the supervisor
testified that complainant was offered the maintenance position due to her
impending termination as a carrier in light of her inability to perform
the carrier's driving responsibilities. Specifically, the supervisor
remarked that complainant was involved in two preventable accident in a
six month period. The supervisor denied making the statement regarding
complainant's younger co-workers as alleged by complainant.
The AJ further concluded that complainant established that more
likely than not, the reasons provided by the agency were a pretext
for discrimination. In reaching this conclusion, the AJ found that
complainant was not immediately removed from her driving responsibilities
following the second accident. Rather, her driving responsibilities were
not removed until December 13, 1996. The AJ found that the supervisor's
characterization of complainant's two accidents as �serious enough to
constitute a threat to herself and the public� was inconsistent with the
agency's failure to immediately remove complainant's driving duties.
Furthermore, the AJ found that the supervisor failed to discipline a
younger female co-worker when she was involved in a more serious accident
than complainant's accident. The AJ also determined complainant's prior
termination in May 1996, which was later rescinded, was relevant to her
finding that the supervisor treated complainant more harshly than other
co-workers, such as the younger female comparison employee. In light
of the aforementioned, the AJ found it was more likely than not that
the supervisor made the �younger employee� statement as referenced above.
The AJ concluded her decision by finding that complainant proved, by
a preponderance of the evidence, that the agency disparately treated
complainant as a member of the recognized class of �sex plus age�, i.e.,
on the basis of being an older woman.
The agency's final decision rejected the AJ's decision. The agency
rejected the notion that the comparison employee and complainant were
similarly situated since complainant was a career employee and the
comparison employee was a transitional employee. The agency also found
no evidence to support the AJ's finding that complainant was discriminated
against as an older woman.
In response, complainant contends on appeal that the AJ's RD correctly
summarized the facts and reached the appropriate conclusions of law.
Complainant pointed out that the record does support the AJ's finding of
sex and age discrimination. Specifically, complainant argues that a male
co-worker was involved in an accident for which he was not disciplined.
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. We discern no basis to disturb the
AJ's decision.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES
the agency's final decision and REMANDS the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall retroactively promote complainant to the City Letter
Carrier position, or a comparable position, from the effective date of
the date she was placed into the Laborer Custodian position. Complainant
shall also be awarded back pay, seniority and other employee benefits
from the date of the effective promotion.
The agency shall determine the appropriate amount of back pay, 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."
The agency shall pay complainant's reasonable attorney's fees and costs
in accordance with the paragraph below.
The agency is directed to conduct training for the supervisor who was
found to have discriminated against complainant. The agency shall address
this employees' responsibility with respect to eliminating discrimination
in the workplace.
The agency shall post a notice in accordance with the paragraph 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 supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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).
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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Arlington, Texas 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.
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
(R1199)
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.
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:
April 26, 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.