07a00031
11-03-2000
Mitchell Klau, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Mid-Atlantic Region, Agency.
Mitchell Klau v. United States Postal Service
07A00031
November 3, 2000
.
Mitchell Klau,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Mid-Atlantic Region,
Agency.
Appeal No. 07A00031
Agency No. 4D-230-1007-96
Hearing No. 120-A0-3280X
DECISION
On July 14, 2000, the agency filed a timely appeal from an EEOC
Administrative Judge's finding that complainant was discriminated against
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. on the basis of his religion
(Jewish) and in reprisal for prior protected activity when on August 23,
1995 his non-scheduled day was changed. The Administrative Judge (AJ)
ordered the following relief: $1,517.50 in pecuniary damages; $17,500.00
in non-pecuniary damages; $14,787.50 in attorney's fees; and $99.54
in costs. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<1>
We note that on April 25, 2000, the agency filed a premature appeal and on
May 17, 2000, pre-empted the AJ by issuing a decision on attorney fees.
However, the agency corrected the situation by filing a timely appeal
after the AJ concluded the hearing process by issuing her decision on
attorney fees, and complainant filed a timely cross appeal which the
Commission consolidates herein.<2> Accordingly, we will now review,
in this single appeal, the AJ's decisions on liability, compensatory
damages, and attorney's fees and costs.<3>
The record reveals that complainant, a Letter Carrier at an agency
facility in Portsmouth, Virginia, filed a formal EEO complaint on October
12, 1995, alleging that the agency had discriminated against him as
referenced above.<4> At the conclusion of the investigation, complainant
was provided a copy of the investigative report and requested a hearing.
Following a hearing, the AJ issued a decision finding discrimination.
The AJ concluded that complainant established a prima facie case of
religious discrimination when his non-scheduled day was changed while
the non-scheduled days of co-workers outside of his protected class
were not changed. The AJ also concluded that complainant established a
prima facie case of retaliation when he engaged in protected activity by
requesting annual leave for a religious holiday and shortly thereafter
was told that the non-scheduled day he had enjoyed for seven years
would be changed. The AJ then concluded that the agency articulated a
legitimate, nondiscriminatory reason for its action, namely that it was
a violation of the union contract for complainant to have a non-scheduled
day different from the one provided in his bid assignment. The AJ further
concluded that the proffered reason was a pretext for discrimination and
retaliation. The AJ disbelieved the responsible management official's
contradictory testimony and concluded that she only became concerned
about the violation of the union agreement because of her anger over
complainant's request for religious leave. In reaching this conclusion,
the AJ found that: (1) the responsible management official was aware that
complainant had the same non-scheduled day, outside of his bid assignment,
for seven years; (2) none of complainant's co-workers complained about
complainant's non-scheduled day; (3) complainant requested leave for
a religious holiday during the time period for route inspections when
employees were asked not to take leave; and (4) comments made in the
past by the responsible management official to complainant about his
religion evidenced discriminatory animus.
At the relief stage, the AJ awarded complainant $1,517.50 for past
and future pecuniary damages for the costs of his visits to a licensed
clinical social worker. The AJ also awarded complainant $17,500.00 in
non-pecuniary damages for the emotional stress he sustained as a result
of the agency's discriminatory action. The AJ described this stress as
manifesting itself as emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life with a profound adverse impact on
his relationship with his family. Finally, the AJ concluded that
complainant was a "prevailing party" and, as such, was entitled to
attorney's fees and costs. After subtracting certain unrelated fees
and excessive hours and adjusting for complainant's failure to provide
evidence that his attorneys' rates were "reasonable," the AJ awarded
complainant $14,787.50 in fees and $99.54 for the costs of mileage,
parking, postage and long distance telephone/facsimile use.
The agency's final action rejected the AJ's findings of discrimination and
retaliation. The agency argues: (1) that the AJ's decision must be found
"null and void" because the complaint was withdrawn based on a settlement
agreement reached in October 1999; (2) that the AJ erred in finding a
prima facie case of religious discrimination because complainant did
not identify any individuals outside of his protected classes who were
treated more favorably than he was, i.e. whose unofficial non-scheduled
day was changed; (3) that the AJ erred in finding a prima facie case of
retaliation because the submission of a leave request for a religious
holiday does not constitute protected activity or, in the alternative,
that there was an insufficient temporal nexus between complainant's prior
opposition to anti-Semitic remarks made by another employee in the early
1990s. The agency also objects to the AJ's awarding of damages, fees
and costs based on its contention that the complaint had been withdrawn.
In the alternative, regarding compensatory damages, the agency argues
that complainant failed to prove that the agency's action caused the
emotional distress in his life, and, even if it did so, the award is
"monstrously" excessive. Concerning the attorney's fees and costs,
the agency contends that there was no contracted hourly rate; that the
number of hours spent was excessive, redundant and unnecessary; and that
complainant only prevailed on one of three issues.
In response, complainant contends that the settlement agreement clearly
references only EEOC #120-98-9717X and that neither complainant nor
the agency intended for it to resolve or preclude further processing
of the instant complaint. Complainant further argues that the AJ's
decision correctly summarized the facts and reached the appropriate
conclusions of law regarding discrimination and retaliation. Finally,
complainant contends that the agency's objections to the damages award
are spurious and without merit and that the AJ incorrectly reduced the
amount of attorney's fees and costs to which complainant was entitled.
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). The AJ's legal conclusions are subject to de
novo review by the Commission, regardless of whether or not a hearing
was held.
Initially, the Commission addresses the agency's argument that by
operation of the settlement agreement, complainant has withdrawn the
instant complaint. The pertinent agreement language reads:
It is understood by the undersigned that this Agreement is in full and
complete settlement of all outstanding administrative EEO complaints or
Complaints, (EEOC #120-98-9717X), in this or any other forum filed by
the below named Complainant or on his behalf relating to any matters
that occurred prior to the execution of this Settlement Agreement.
The below named Complainant agrees to voluntarily withdraw any outstanding
administrative complaint or appeal, and to request that any Grievance
be withdrawn.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has
further held that it is the intent of the parties as expressed in the
contract, not some unexpressed intention, that controls the contract's
construction. See Eggleston v. Department of Veterans Affairs, EEOC
Request No. 05900795 (August 23, 1990). In ascertaining the intent of
the parties with regard to the terms of a settlement agreement, the
Commission has generally relied on the plain meaning rule. See Hyon
v. United States Postal Service, EEOC Request No. 05910787 (December
2, 1991). This rule states that if the writing appears to be plain
and unambiguous on its face, its meaning must be determined from the
four corners of the instrument without resort to extrinsic evidence of
any nature. See Montgomery Elevator Co. v. Building Eng'g Sews. Co.,
730 F.2d 377 (5th Cir. 1984). However, if the meaning of the agreement
is open to question, the circumstances in which the contract was made may
be considered in interpreting the contract. See Johnson v. Department
of the Interior, EEOC Request No. 05930532 (March 31, 1994).
The Commission finds the pertinent agreement language to be contradictory.
If the intent of the parties, as the agency argues, was that the agreement
should operate to resolve all EEO complaints filed prior to its execution,
then there is no explanation as to why the agreement specifically
identifies EEOC #120-98-9717X. We note that the original, unsigned
Settlement Agreement did not specifically identify EEOC #120-98-9717X.
Complainant asserts that he refused to sign the agreement until it
specifically identified EEOC #120-98-9717X as the complaint contemplated
by the signing parties. We also note that while her office dismissed
EEOC #120-98-9717X on October 8, 1999 because of the settlement agreement,
the agency never requested the AJ to dismiss the instant complaint which
was pending a decision addressing remedies and relief. In considering
this evidence, we find that the parties did not intend for the instant
complaint to be withdrawn.
Upon review, the Commission further finds that the AJ's factual findings
are supported by substantial evidence in the record and that her decision
referenced the appropriate regulations, policies, and laws. While the
agency has made a persuasive argument that complainant failed to identify
any similarly situated employees whose unofficial, non-scheduled days were
not changed, we note that although comparative evidence is often used to
establish disparate treatment, it is not required; complainant need only
set forth some evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978). Approximately two weeks before
his non-scheduled day was changed, complainant informed his first line
supervisor that he would need leave for a religious holiday that fell
during the route inspections. She responded, "I never heard of no Jew
not working. You'll be here." The Commission draws an inference of
religious discrimination from this response.
We also find that the AJ properly construed complainant's request for
annual leave for a religious holiday to constitute the type of protected
activity contemplated under Title VII. Moreover, we find that the
AJ carefully reviewed both the evidence, including the testimony of
complainant's family, friends, social worker and rabbi, and appropriate
Commission precedent in determining the award of damages. See Olsen
v. Department of Defense, EEOC Appeal No. 01956675 (July 29, 1998); Lam
v. Department of Agriculture, EEOC Appeal No. 01961589 (June 11, 1998).
The award is not "monstrously" excessive, nor is it the product of
passion or prejudice. Finally, we find that the AJ carefully reviewed
the fee petition and correctly determined the monetary amount to which
complainant was entitled. We are unpersuaded by complainant's contention
that, in the instant case, the duplicative legal services provided by
the senior partner at the damages hearing should not have been subtracted.
We discern no basis to disturb the AJ's decisions.<5>
Therefore, after a careful review of the record, including the agency's
arguments on appeal, complainant's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES
the agency's final order and REMANDS the matter to the agency to take
remedial action in accordance with this decision and the ORDER below.
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay complainant: $1,517.50 in pecuniary damages;
$17,500.00 in non-pecuniary damages; $14,787.50 in attorney's fees;
and $99.54 in costs.
2. The agency shall conduct training for its supervisory personnel at its
Portsmouth, Virginia facility regarding their obligations under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
3. 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 verifying
that the foregoing corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Portsmouth, Virginia 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 (K0900)
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 (M0900)
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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 3, 2000
__________________
Date
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
______________________________
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 Both complainant's (August 9, 2000) and the agency's (July 14, 2000)
appeals have been docketed under appeal no. 07A00031.
3 We note that an agency shall take final action by issuing a final
order within forty (40) days of receipt of: (1) the hearing file; and
(2) the decision of an AJ which concludes the hearing process. See 29
C.F.R. � 1614.110(a). When an AJ finds discrimination, the decision
which concludes the hearing process is the decision which completes
the adjudication of liability and relief, including attorney's fees and
costs, if applicable. If the AJ issues separate decisions on liability
and relief, the AJ will issue a Notice to the Parties, informing them
of their rights and responsibilities on appeal, with the decision which
concludes the hearing process.
4 Complainant did not allege a failure of religious accommodation, and
we note that although complainant did not originally allege reprisal
in his formal complaint, the AJ properly exercised her discretion to
expand the basis to include reprisal when it became apparent that it
was complainant's intent to do so.
5 We note that the AJ did not order the agency to return complainant's
non-scheduled day because to do so would have been in violation of the
agreement between the agency and the National Association of Letter
Carriers and that subsequent to the events at issue herein, complainant
bid on a different route and now has two consecutive non-scheduled days.