07a50056
07-12-2005
Neela Vashi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Neela Vashi v. United States Postal Service
07A50056
July 12, 2005
.
Neela Vashi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A50056
Agency Nos. 4-F-926-0133-01
4-F-926-0168-01
Hearing No. 340-2002-03333X
DECISION
Following its March 8, 2005 final order, the agency filed a timely appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
the finding of an EEOC Administrative Judge that complainant prevailed
in the captioned complaints of unlawful employment discrimination.
In response, complainant argues that the AJ's decision is supported by
substantial evidence, and requests that the Commission deny the agency's
appeal and reverse its final order.
Complainant, a Part-time Flexible (PTF) clerk employed at the agency's
Corona, California postal facility, filed the captioned complaints.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race (Asian), national origin
(East Indian), sex (female), disability (hearing impairment, back and
foot impairments, and a hiatal hernia), age (D.O.B. 9/4/54), and in
reprisal for prior EEO activity when:
(1) On April 7, 2001, complainant supervisor required her to complete
a �PS 3971" to document her approximately 2-minute late arrival, while
other PTF employees were not require to do so; and
From July 10 to July 20, 2001, after a verbal altercation with a 204B
supervisor, management instructed complainant not to report to work;
subjected her to an investigative interview; placed in her an emergency
off-duty status; issued her a Notice of Removal; and ultimately removed
her from agency employment.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that, in regard to claim (1), the
agency discriminated against complainant, on the bases of race, national
origin, age, disability, but not on the bases of sex or reprisal.<1>
Specifically, the AJ found that although the agency articulated a
legitimate, non-discriminatory reason for its action: the 3971's are a
management tool used to correct tardiness. However, the AJ found that
complainant presented sufficient evidence to demonstrate that this reason
was a mere pretext for discrimination. In particular, the AJ found that
complainant was the first employee ever instructed to complete this form
for being less than 5-minutes late, and that there was a 5-minute leeway
rule which should have exempted complainant. The AJ noted that after
requiring complainant to complete the 3971, her supervisor required
other subordinates to do so as well. The AJ did not find credible
the supervisor's testimony explaining that he did so for various
administrative purposes. Instead, the AJ found that the supervisor
acted in an attempt to rebut complainant's claim of discrimination.
Therefore, the AJ determined that complainant prevailed on this claim.
Regarding claim (2), the AJ found that the agency discriminated against
complainant on the bases of race, national origin and sex, but not on the
bases of age or disability.<2> The AJ found that the agency articulated
a legitimate, non-discriminatory reason for its action: complainant
was removed because she violated the Zero Tolerance Policy. However,
the AJ again determined that complainant presented sufficient evidence
to demonstrate that this reason was a mere pretext for discrimination.
In particular, the AJ found that the agency did not consistently
administer its Zero Tolerance Policy. In support of this conclusion,
the AJ noted an instance where other employees had engaged in far
more violent altercations as compared to complainant, and yet were not
ultimately removed from employment.<3> On the other hand, the AJ found
that in an instance of physical contact between two workers involved in
an altercation, with one slapping the hand of another, the agency issued
no discipline whatsoever.
Moreover, the AJ found that in complainant's case, the agency improperly
invoked the Zero Tolerance Policy based on her determination that
the responsible management officials did not actually believe that
complainant's statement to the 204B supervisor constituted a threat
of violence. In reaching this determination, the AJ found that the
testimony of the responsible management officials that they believed
that complainant's behavior was an actual threat was not credible,
noting that a postal threat assessment specialist called in immediately
after the incident determined that although complainant's action was not
appropriate, it was not a credible threat. The AJ also was persuaded
that complainant's statement was not perceived as an actual threat
by management because immediately after the altercation, a manager
instructed the 204B supervisor to go back to complainant and take her
statement and tell her to go home, with no apparent concern of violence
from complainant. The AJ specifically found that complainant's removal
was retaliatory because 14 days after receiving notice of complainant's
EEO complaint, the responsible management official issued complainant's
notice of removal, given record evidence demonstrating that the agency
did not apply its Zero Tolerance Policy consistently and that none of
the involved responsible officials actually believed that complainant
issued a threat against the 204B supervisor.
Based on the above findings, the AJ awarded complainant full make-whole
relief, including attorney's fees and costs.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that there is nothing in the record to support the AJ's
findings, and that a finding that the agency's actions were motivated
by unlawful discrimination was merely speculative. Regarding claim
(2) in particular, the agency argues that an arbitration decision on
complainant's removal was upheld, and that the arbitration decision is
strong presumptive evidence that the agency had reason to believe that
complainant violated the Zero Tolerance Policy, and essentially precludes
a finding that complainant's removal was discriminatory.
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.
Here, although we have carefully considered the agency's arguments
on appeal, we find that the AJ made specific and detailed credibility
determinations in finding that the incidents in claims (1) and (2) were
motivated by unlawful discrimination. Moreover, we determine that record
evidence further supports these determinations, and is fully discussed
in the AJ's decision, as set forth above. After review, we determine
that the AJ's findings of fact are supported by substantial evidence.
Notwithstanding this determination, we note that the AJ did not provide
an analysis as to whether complainant is a qualified individual with a
disability as defined by the Rehabilitation Act. However, we need not
address this matter further because complainant otherwise prevailed in
claim (1) on alternative bases, and her remedy is unchanged. Moreover,
because complainant did not prevail on claim (2) on the basis of
disability, we do not reach a determination as to whether complainant
is entitled to the protection of the Rehabilitation Act.
As to the agency's contention that the AJ erred in failing to accord
adequate presumptive weight to the arbitration decision in favor
of the agency, we find that an AJ is not bound by the findings, or
conclusions, in a decision rendered in another forum. See generally
Rose v. U.S. Postal Service, EEOC Appeal No. 01811562 (August 13, 1982).
In this case, we find that the AJ made specific credibility determinations
and findings of fact, and properly came to a contrary conclusion.
Specifically, on the record before us, we find that the AJ properly
determined that the agency failed to consistently address violations of
its Zero Tolerance Policy, with record evidence showing a case-by-case
approach to reported infractions, as opposed to a �zero tolerance� stance.
Moreover, we are also persuaded that the AJ properly concluded that
the responsible management officials did not actually believe that
complainant intended physical harm to the 204B supervisor by virtue of
her remark, notwithstanding a finding in the arbitration decision that
complainant violated the Zero Tolerance Policy.<4> In this regard,
we find that the record reflects that complainant had no record of any
aggressive conduct whatsoever, and that an onsite investigative report
from a postal threat specialist confirms that complainant's statement
could not be viewed as a credible threat. We also find no reason to
dispute the AJ's credibility determinations as to this issue.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence and the AJ correctly applied the appropriate
regulations, policies, and laws.
The Commission REVERSES the agency's final order and REMANDS the matter
to the agency to take corrective action in accordance with this decision
and the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
Complainant shall be reinstated to her former position of PTF Clerk at
the Corona Post Office in Corona, California, retroactive to the date
of her removal.<5>
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."
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall provide EEO training to the Postmaster and all
supervisors and managers at the Corona Post Office, designed to ensure
that they become aware and/or continue to be aware of their obligations,
rights, and responsibilities under the federal employment statutes.
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall pay to complainant the sum of $35,000.00 in
non-pecuniary compensatory damages;
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall pay attorney's fees in the sum of $85,043.25,
and costs in the sum of $7,972.41 to complainant's attorney, and costs
in the sum of $2,730.71 to complainant, and any additional fees and
costs associated with the processing of this appeal, as set forth in
the �Attorney's Fees� provision below.
Within thirty (30) calendar days of the date that this decision becomes
final, the agency will post a notice at the Corona Post Office as set
forth in the Posting Order 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 backpay 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 Corona California Post Office 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 (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
July 12, 2005
__________________
Date
1The AJ found that comparative employees
identified by complainant were also female and that complainant had not,
as of the time at issue, engaged in prior protected EEO activities,
so that she could not establish a prima facie case of discrimination on
these bases.
2The AJ found that comparative employees identified by complainant
were also over the age of 40 and were individuals with disabilities,
so that she could not establish a prima facie case of discrimination
on these bases. The AJ also found that complainant did not raise a
reasonable accommodation claim.
3The record reflects that complainant's violation consisted of the
following statement made to a 204B supervisor with whom she was having
a disagreement: �I will do something back (or bad) to you.�
4In the arbitration decision, the arbitrator found that because the
204B supervisor was clearly traumatized by complainant's statement, as
evidenced by making a police report, a violation of the Zero Tolerance
Policy occurred and the removal was upheld. However, in the instant
matter, we note that the AJ found that the testimony of the 204B
supervisor not to be credible in this regard, especially in that she
re-engaged with complainant immediately after the �threatening�incident,
for the purpose of obtaining a statement and to send her home, with no
apparent fear for her safety.
5Agency correspondence reflects that complainant was reinstated to her
position on March 26, 2005.