01a00180
04-17-2000
Marion D. Tyler, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Marion D. Tyler, )
Complainant, )
) Appeal No. 01A00180
v. ) Agency No. 4G-760-0237-97
) Hearing No. 310-99-5059X
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 on the bases of race (Black) and sex (female)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges she was discriminated
against when she was removed from her position with the Postal Service.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the agency's final decision which found discrimination
on the basis of sex and MODIFIES the relief. The agency is directed to
comply with the ORDER below.
The record reveals that complainant, a Transitional Employee (TE) City
Carrier at the agency's Arlington, Texas facility, began her appointment
in January 1997. The appointment was to expire on January 2, 1998,
but instead, complainant was issued a Notice of Removal effective June
6, 1997. She subsequently filed a formal EEO complaint with the agency
on June 25, 1997, 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
Recommended Decision finding discrimination on the basis of sex.
In his decision, the AJ found that complainant established that the
agency's reason for its action was a pretext for sex discrimination.
Specifically, the agency maintained that complainant was removed for
unsatisfactory service due to her inability to complete her route in
a timely manner, thus incurring overtime. The AJ found however, that
male employees were not similarly disciplined for incurring comparable
amounts of overtime on the route. The AJ also noted that the record
did not support the agency's assertion that complainant took �one and
a half times� the evaluated time to carry the route, as was maintained
by the agency. The AJ thus concluded that complainant established
that more likely than not, the agency's reasons were a pretext for sex
discrimination. The AJ also found, however, that complainant was not
discriminated against on the basis of race.
As a remedy, the AJ recommended that complainant be �returned to work as
a Part Time Flexible (PTF) employee� and should be awarded back pay, with
interest, in an amount calculated from the period beginning on the date
her termination was effective and ending on the date she was returned to
work, less any sums earned by her in the interim. The AJ also recommended
that the agency restore complainant all benefits, including seniority,
that would have accrued during this period. Finally, the AJ recommended
that a notice be posted at the facility.
On September 20, 1999, the agency issued a final decision adopting
the AJ's finding of discrimination on the basis of sex, and finding of
no discrimination on the basis of race. The agency however, rejected
the AJ's recommended relief, arguing that acceptance of such a remedy
would place complainant in a status superior to that what she was in
at the time he was terminated and thus, would exceed the �full relief�
requirements of Title VII.
The agency maintained that the AJ erred when he recommended that
complainant be �returned� to a PTF position, as complainant was never in
a PTF position. The agency argued that since PTF positions are career
positions, complainant would have needed to be on the appropriate hiring
register and reached an appropriate score before being considered for
hire. Despite the AJ's finding that all TE's were removed or converted
to PTF permanent positions if successful on the appropriate examination,
there was no showing of such in the record. The agency rejected
the AJ's inference that since complainant passed other examinations,
she would have reached the appropriate score, and been placed on the
hiring register. Absent such a finding, there was no legitimate basis
for granting complainant a career position. Indeed, the agency found
that complainant never complained she was denied a career PTF position,
nor did she present any testimony regarding this issue. As such,
the agency modified that AJ's decision to reflect that complainant be
awarded back pay with interest for the remainder of her TE appointment.
This appeal followed. Neither the agency nor complainant submitted
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
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 that discriminatory intent did
not exist 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 recommended decision summarized
the relevant facts and referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's finding
of discrimination.
With respect to the remedy, however, we agree with the agency that the
AJ's recommend relief would place complainant in a position greater than
that which she was at the time of her termination. The AJ noted in his
decision that all TE's were either removed or converted to PTF positions
through the administration of special examinations, which if passed by
the TE, caused the employee to convert from TE status to PTF status.
The AJ also noted that complainant had previously passed a battery of
tests administered by the agency. Thus, it is presumed that the AJ made
his determination that complainant should be placed into a PTF position
for these reasons.
As an initial matter, upon review of the record, we find no support for
the AJ's factual finding that all TE's were removed or converted upon
successful completion of examinations. Furthermore, we find no evidence
that complainant would have passed the examinations that would have
placed her on the hiring register. Finally, there is no evidence that
complainant ever complained about the denial of a career PTF position.
Rather, in her complaint, she requested reinstatement to a TE position
and back pay from the effective date of her termination as relief.
Insofar as complainant has established discrimination, she is entitled
to "make whole" relief. "Make whole" relief has been defined as the
placement of an individual, as near as may be, in the situation he
would have been in absent the discrimination. See Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418-419 (1975). We find that the AJ's
determination that complainant be placed into a PTF position is clearly
speculative and not supported by the record. The Commission has been
reluctant to assume that an individual, absent a discriminatory act,
would have subsequently received a competitive promotion. Ritchie
v. United States Postal Service, EEOC Request No. 05980501 (February
11, 1999); Ramirez v. U.S. Postal Service, EEOC Petition No. 04950024
(February 8, 1996). Based on the foregoing, the Commission concludes
that offering complainant placement into a PTF Carrier position goes
beyond what constitutes "make whole" relief.
Although complainant is not entitled to a PTF Carrier position, she is
entitled back pay, including interest and all benefits, that she would
have accrued from the effective date of her removal until the termination
of her appointment. The agency is reminded, however, that complainant is
entitled to compete for any career position she would have been entitled
to compete for absent the discrimination.
Therefore, after a careful review of the record, and arguments and
evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's final decision which found that complainant was
subjected to discrimination on the basis of sex. The agency's decision
with respect to its remedy, however is MODIFIED. Accordingly, the
Commission remands the matter to the agency to take remedial actions in
accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days from the date on which this decision becomes
final, the agency shall rescind the Letter of Removal, and remove it
from complainant's official personnel file. Complainant shall also
be awarded back pay and other employee benefits, from the date of the
effective removal until the end of her appointment.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 ensure that complainant is entitled to compete for any
and all career positions that she would have been entitled to compete
for absent the discrimination. The agency shall further ensure that
complainant is not subjected to retaliation for her participation in
the EEO process.
The agency is directed to conduct training for the supervisor who was
found to have discriminated against complainant by terminating her.
The agency shall address this employee's responsibility with respect to
eliminating discrimination in the workplace.
The agency shall pay complainant's reasonable attorney's fees and costs
in accordance with the paragraph below.
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.
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.
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.
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 (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 17, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________________
Date Equal Employment Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 that 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 Arlington Texas Post Office, United States Postal Service,
(hereinafter referred to as �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
when it removed complainant from her appointment to a Transitional City
Carrier. The facility was ordered to rescind the Letter of Removal,
and remove it from complainant's personnel file. The facility was also
ordered to award complainant back pay, and all other benefits, from the
time of her removal until the end of her appointment, provide training
to the responsible official, pay complainant's reasonable attorney's
fees, and post this notice.
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 16141 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.