Robert E. Jones, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 21, 2000
01a00563 (E.E.O.C. Mar. 21, 2000)

01a00563

03-21-2000

Robert E. Jones, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert E. Jones, )

Complainant, )

)

v. ) Appeal No. 01A00563

) Agency No. 4D-250-1054-94

William J. Henderson, ) Hearing No. 170-97-8130X

Postmaster General, )

United States Postal Service, )

Agency. )

________________________________)

DECISION

Complainant filed the instant appeal from the agency's October 6, 1999

decision finding that the agency did not discriminate against complainant

based on complainant's sex (male), age (date of birth: December 1,

1951), and disability (knee, shoulder, and back impairments).<1> In his

complaint, complainant alleged that he was discriminated against when in

November 1993 he was not selected for the Postmaster positions located

in Atkins, Virginia (EAS-15 level); Long Island, Virginia (EAS-13 level);

and Smoot, West Virginia (EAS-11 level).

Complainant initially settled the complaint on March 15, 1994,

but subsequently alleged that the agency breached the agreement.

Complainant filed an appeal with the Commission regarding his breach

of settlement claim and the Commission issued a decision on October 28,

1996 setting aside the settlement agreement for lack of consideration.

Jones v. United States Postal Serv., EEOC Appeal No. 01956176 (Oct. 28,

1996). The agency reinstated the complaint and complainant subsequently

requested a hearing before an EEOC Administrative Judge.

On June 7, 1999, in a Scheduling Order, an EEOC Administrative Judge

issued a decision without holding a hearing. The administrative judge

found that complainant was discriminated against because of his sex

when he was not selected for the Postmaster positions in Long Island

and Smoot. The administrative judge found that complainant was not

discriminated against on the bases of his age or disability when he

was not selected for the Postmaster positions in Long Island and Smoot.

The administrative judge also found that complainant was not discriminated

against on the bases of sex, disability, or age, when he was not selected

for the Atkins Postmaster position. On July 14, 1999 a hearing was held

on the issue of compensatory damages.

On July 27, 1999 the administrative judge issued a decision further

explaining her findings of discrimination, her findings of no

discrimination, and setting forth the following corrective action to be

taken by the agency:

Promotion of complainant to the position of Postmaster EAS-13 level

retroactive to November 27, 1993 (the earliest effective date of the

two discriminatory promotions).

Backpay with interest (computed in the manner prescribed by 5 C.F.R. �

550.805), including increases in pay and set raises, retirement benefits

(if applicable), and any other benefits to which complainant would

have been entitled, retroactive to the earliest effective date of the

promotions, November 27, 1993 until June 21, 1994 (the date from which

complainant has been unable to work).

Posting of a notice attached to the administrative judge's decision.

Payment of compensatory damages (all non-pecuniary) in the amount of

$5,000.00.

The agency found in its October 6, 1999 decision that complainant

was not discriminated against on any alleged bases in the complaint.

The agency further asserted that complainant should not have been

awarded compensatory damages. On appeal, complainant asserts that the

administrative judge's decision was correct. The Commission finds that

complainant is not challenging the administrative judge's findings of

no discrimination and therefore we will not consider those claims in

this decision.

The Commission finds that the administrative judge properly found that

complainant was discriminated against because of his sex when he was

not selected for the Postmaster positions in Long Island and Smoot.

The administrative judge found, and the agency admits, that the Selectees

for the two Postmaster positions in Long Island and Smoot were female.

The administrative judge found that the agency failed to articulate a

legitimate, non-discriminatory reason for not selecting complainant

because the agency failed to retain the promotion packages for the

selections. The Commission agrees with the administrative judge that

without the promotion packages in the instant matter, complainant does

not have a �full and fair opportunity to demonstrate� that the agency's

reasons were a pretext for discrimination. Under such circumstances,

we find that the administrative judge properly issued summary judgment

finding the agency discriminated against complainant because of his sex

when he was not selected for the Postmaster positions in Long Island

and Smoot.

The Commission's review of the record shows that the administrative

judge's remedy is appropriate and that the award of $5,000.00 in

compensatory damages is sufficient and appropriate for complainant's

non-pecuniary damages.

The agency's decision finding no sex discrimination when complainant was

not selected for the Postmaster positions in Long Island and Smoot is

REVERSED and we REMAND the matter to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER

The agency shall comply with the administrative judge's July 27, 1999

remedial relief by providing the following:

Within 30 days of the date this decision becomes final, the agency

shall promote complainant to the position of Postmaster EAS-13 level

retroactive to November 27, 1993.

2. Within 30 days of the date this decision becomes final, the agency

shall provide complainant with backpay with interest (computed in the

manner prescribed by 5 C.F.R. � 550.805), including increases in pay and

set raises, retirement benefits (if applicable), and any other benefits to

which he would have been entitled, retroactive to the earliest effective

date of the promotions, November 27, 1993 until June 21, 1994.

Within 30 days of the date this decision becomes final, the agency shall

post the notice attached to the administrative judge's decision in the

places and manner specified by the administrative judge.

Within 30 days of the date this decision becomes final, the agency shall

pay complainant $5,000.00 in compensatory damages.

Submit evidence showing that the agency has complied with provisions 1 -

4 of this Order (including a document reflecting complainant's promotion,

a copy of the check providing backpay, a copy of the notice, and a copy

of the check sent to complainant for the compensatory damages) to the

Compliance Officer referenced herein.

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.

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).

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:

March 21, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ Date

Equal Employment Assistant

1On 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.