Samuel S. Haver, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionMar 19, 2000
07A30135 (E.E.O.C. Mar. 19, 2000)

07A30135

03-19-2000

Samuel S. Haver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Samuel S. Haver v. United States Postal Service

07A30135

March 19, 20004

.

Samuel S. Haver,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 07A30135

Agency No. 6-U-000-0003-02

Hearing No. 130-A3-8074X

DECISION

Following its September 12, 2003 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.<1>

On appeal, the agency requests that the Commission affirm its rejection of

an EEOC Administrative Judge's (AJ) finding that the agency discriminated

against complainant on the basis of his sex. The agency also rejected

the relief ordered by the AJ, as well as compensatory damages. For the

following reasons, the Commission REVERSES the agency's final order.

ISSUE PRESENTED

The issue presented herein is whether the EEOC Administrative Judge

(AJ) correctly found that: the agency discriminated against complainant

based on his sex, when on or about March 18, 2002, he was not selected

for the position of Manager, Business Service Network.

BACKGROUND

In April, 1998, complainant was employed by the agency as a Mailpiece

Design Analyst, EAS-15, in the Mississippi District at the agency's

General Mail facility located in Jackson, Mississippi. On or about

March 9, 1998, the agency issued a vacancy announcement for the position

of Manager, Postal Business Center, EAS-20, at the same location.

Complainant applied for the position and was notified of his non-selection

by letter, dated April 27, 1998. On or about February 25, 2002,

the agency issued a vacancy announcement for the position of Manager,

Business Service Network Operations, EAS-20. Complainant applied for

the position but was not selected, and a female employee was selected.

In March, 2002, complainant, was employed by the agency as a Senior

Customer Services Representative, EAS-16. On or about March 18, 2002,

complainant initiated contact with an EEO counselor concerning his

non-selections, including the non-selection that occurred in April, 1998.

On May 22, 2002, complainant filed an EEO complaint alleging that the

agency discriminated against him on the basis of sex when: (1) on or

about March 18, 2002, he was not selected for the position of Manager,

Business Service Network; and (2) in April, 1998, he was not selected

for the position of Manager, Postal Business Center.

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 issued a decision finding that complainant

did not make EEO counselor contact within forty-five days of his April,

1998 non-selection. The AJ found that complainant waited for almost four

years before making his initial EEO counselor contact. The AJ concluded

that complainant has provided no evidence to support an equitable tolling

of the filing period. The AJ determined that complainant's informal

EEO contact was untimely on this issue and dismissed this portion of

complainant's EEO complaint.

In his decision, the AJ also found complainant was discriminated against

on the basis of his sex, regarding the March 18, 2002 non-selection.

Specifically, the AJ concluded that the agency's articulated reason for

complainant's non-selection in March, 2002, was unworthy of belief.

In so finding, the AJ determined that the agency articulated as its

legitimate nondiscriminatory reason that the selectee was chosen pursuant

to the agency's RIF-avoidance procedures. However, the AJ found that

the selecting official testified that the selectee was chosen through

the competitive selection process and that the RIF-avoidance process

was not used. As such, the AJ concluded that the agency's explanation

for the March 2002 selection was unworthy of belief and a pretext for

sex discrimination.

Based on the finding of discrimination, the AJ, in his final decision

dated July 29, 2003, awarded $10,000.00 in non-pecuniary compensatory

damages. Specifically, the AJ found that complainant suffered emotional

harm as a direct result of his non-selection. The AJ also found that

complainant was entitled to placement in the Manager, Business Service

Network position, retroactive to the date the selectee was placed in

that position, along with retroactive rights and benefits that would have

accrued but for the discrimination, including back pay, with interest.

The agency's final order affirmed the AJ's dismissal of complainant's

claim (2) for untimely EEO contact, but rejected the AJ's finding of

discrimination regarding claim (1). On appeal, the agency contends, among

other things, that at the time of the March 2002 selection for Manager

of Business Service Network Operations, complainant was an EAS-16, and

the selectee an EAS-23, and that complainant was requesting promotion,

and the selectee a downgrade. The agency also contends that complainant

was not in danger of losing his job as a result of the RIF; however, the

selectee was going to lose her job. The agency concluded that these facts

support a finding that the selection in March 2002 was not motivated by

sex discrimination. The agency also contends that the AJ incorrectly

concluded that because the 2002 selection was competitive, that RIF

avoidance procedures were not followed in the selection. Specifically,

the agency argues that just because the selecting official testified that

the selectee was selected through the competitive selection process does

not mean that RIF-avoidance procedures were not also used. The agency

further contends that the amount of compensatory damages awarded by the

AJ is excessive. The agency contends that complainant testified to no

physical problems except for sleeplessness.

On October 16, 2003, complainant responded to the agency's appeal.

In his motion, complainant also challenged the AJ's conclusion that

he did not make timely contact with an EEO counselor, regarding his

non-selection in 1998. Specifically, complainant contends that he

did not have a reasonable suspicion of discrimination in March 2002,

when a manager official told him that he was the first choice in 1998,

for the position. Complainant also requested the Commission to reverse

the agency's order and affirm the AJ's finding of sex discrimination

regarding his non-selection in March 2002.

ANALYSIS AND FINDINGS

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.

Untimely Contact with EEO Counselor

EEOC Regulation 29 C.F.R. � 1614.105 (a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO Counselor

within forty-five (45) days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

(45) days of the effective date of the action. The Commission has

adopted a �reasonable suspicion� standard (as opposed to a �supportive

facts� standard) to determine when the forty-five (45) day limitation

period is triggered. See Howard v. Department of the Navy, EEOC Request

no. 05970852 (February 11, 1999). Thus, the time limitation is not

triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

The Commission finds that complainant should have had a reasonable

suspicion of discrimination when on April 27, 1998 he was notified of

his non-selection for the position and was aware that the selectee was

a female. The record reveals that complainant contacted an EEO counselor

on or about March 20, 2002, four years later. Accordingly, we agree with

the AJ that complainant has provided no evidence to support an equitable

tolling of the filling period. Therefore, we conclude that the agency's

dismissal of claim (2), for untimely EEO Counselor contact, was proper.

Disparate Treatment Claim

A claim of disparate treatment based on indirect evidence is examined

under the three-part analysis first enunciated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he

must first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor

in the adverse employment action. McDonnell Douglas, 411 U.S at 802;

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden

then shifts to the agency to articulate a legitimate, nondiscriminatory

reason for its actions. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). Once the agency has articulated such reason,

the question becomes whether the proffered explanation was the true

reason for the agency's action, or merely a pretext for discrimination.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993).

In order to establish a prima facie case of discrimination based on sex,

complainant must show that he is a member of a protected group and that

he was subjected to an adverse employment action. Packard v. Department

of Health & Human Services, EEOC Appeal Nos. 01985494, 01985495 ( March

22, 2001). He must also show either that he was treated less favorably

than other similarly situated employees outside of his protected group,

id., or must present other, non- comparative evidence which supports

an inference that the agency was motivated by unlawful discrimination.

See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312

(1996). In the instant case, it is not disputed that complainant applied

for the position of Manager, Business Service Network, and although

complainant was qualified for the position, he was not selected.

The record reflects that the agency selected a female individual for

this position. Consequently, we find that complainant established a

prima facie case of sex discrimination.

The burden of production now shifts to the agency to rebut the presumption

by articulating a legitimate, nondiscriminatory reason for its actions.

While the agency's burden of production is not onerous, it must

nevertheless provide a specific, clear and individualized explanation

for the treatment accorded complainant.

We find that the AJ's conclusion that the agency's articulated

nondiscriminatory reasons are unworthy of belief, is supported by

substantial evidence in the record. The AJ' factual finding that the

agency's reasons are unworthy of belief will only be overturned on

appeal if the agency can show that the factual findings are against the

substantial weight of the evidence.<2> The agency has failed to meet

this burden. In so finding, the record indicates that the agency argues

that the AJ incorrectly concluded that because the 2002 selection was

competitive, that RIF avoidance procedures were not also followed in the

selection process. We find that the record did not support the agency's

argument. Complainant's prima facie case, combined with the AJ's finding

that the agency's asserted justification is unworthy of belief, permit

the Commission to conclude that the agency's unlawfully discriminated

against complainant. The Supreme Court has held that a plaintiff may

show pretext by establishing a prima facie case and sufficient evidence

that the defendant's explanation is unworthy of credence. See Reeves

v. Sanderson Plumbing Products, Inc., 530 U.S. 133, (2000); Ford

v. Department of the Army, EEOC Request No. 05980506 (December 6, 2001).

Furthermore, we note that an AJ's credibility determinations are entitled

to deference due to the judge's first-hand knowledge through personal

observation of the demeanor and conduct of the witness at the hearing.

Grant v. Department of the Treasury, EEOC Appeal No. 01985972 (August

2, 2001). We therefore discern no basis to disturb the AJ's decision

in this regard.

Compensatory damages

When discrimination is found, the agency must provide complainant with a

remedy that constitutes full, make-whole relief to restore complainant

as nearly as possible to the position he would have occupied absent

the discrimination. See Franks v. Bowman Transportation Co., 424

U.S. 747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19

(1975). Section 102 (a) of the Civil Rights Act of 1991 (the CRA 1991),

Stat. 1071, Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes

an award of compensatory damages as part of the �make whole� relief

for intentional discrimination. Compensatory damages do not include

back pay, interest on back pay, or any other type of equitable relief.

Section 1981a(b)(3) limits the total amount of compensatory damages

that may be awarded to each complaining party for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss

of enjoyment of life, and other non-pecuniary losses, according to the

number of persons employed by the respondent employer. The limit for an

employer with more than 500 employees, such as the agency, is $300,000.

42 U.S.C. � 1981a (b)(3)(D).

Compensatory damages, however, are further limited to the amount

necessary to compensate an injured party for actual harm caused by the

agency's discriminatory action, even if the harm is intangible. Damiano

v. U.S. Postal Service, EEOC Request No. 05980311 (February 26, 1999).

Compensatory damages should consider the extent, nature, and severity

of the harm and the length of time the injured party endured the harm.

Id.; Compensatory and Punitive Damages Available Under Section 102 of

the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),

at 11-12, 14.

Pecuniary Compensatory Damages

Complainant has not claimed pecuniary damages for expenses incurred as

a result of the discriminatory conduct. Therefore, we agree with the

AJ that this failure precludes complainant an award of pecuniary damages.

Non-Pecuniary Compensatory Damages

There is no precise formula for determining the amount of damages for

nonpecuniary losses, except that the award should reflect the nature and

severity of the harm and the duration or expected duration of the harm.

Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,

1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906

(July 7, 1995). We note that for a proper award of nonpecuniary damages,

the amount of the award should not be "monstrously" excessive standing

alone, should not be the product of passion or prejudice, and should be

consistent with the amount awarded in similar cases. See Ward-Jenkins

v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).

The record reveals that complainant suffered emotional distress, he

experienced sleeplessness and hostility as a result of the agency's

discriminatory conduct. Complainant testified that because of the

non-selection in March 2002, he felt�like his world collapsed.� The

Commission finds that the AJ's award of $10,000.00 in non-pecuniary

damages was appropriate. This amount takes into account the severity of

the harm suffered, and is consistent with prior Commission precedent.

See Mullins v. United States Postal Service, EEOC Appeal No. 01954362

(May 22, 1997) ($10,0000.00 award where complainant's depression and

other emotional and mental disorders were direct result of sexual

harassment and reprisal); Jones v. Department of Defense, EEOC Appeal

No. 01973551 (April 14, 2000) ($9,000.00 award based on complainant's

statements of the interference with family and marital relations, anxiety,

sleeplessness and exhaustion resulting from the agency's discrimination);

Guerra v. United States Postal Service, EEOC Appeal No. 01982149 (July 19,

2000) ($10,000.00 award for physical and emotional harm in the form of

exacerbation of physical impairments, and stress caused by a supervisor's

inappropriate sexual behavior, solicitation and continued harassment).

Therefore, we conclude that the AJ appropriate awarded complainant

$10,000.00, because it is adequate, and not excessive, to compensate

complainant.

CONCLUSION

Based on the foregoing, the Commission finds that the AJ's finding of

fact are supported by substantial evidence. The Commission also finds

that the AJ's decision summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. After a careful review of

the record, including the agency's arguments on appeal, complainant's

response, and evidence not specifically discussed in this decision,

the Commission REVERSES the agency's final order which rejected the AJ's

finding of sex discrimination. The agency is ordered to take remedial

actions in accordance with this decision and the ORDER below.

ORDER (D0403)

The agency shall provide complainant with the following relief:

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall place complainant in the Manager, Business Service

Network position, retroactive to the date the selectee was placed in

said position.

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 this decision becomes final,

the agency shall pay non-pecuniary compensatory damages to complaint

in the amount of $10,000.00.

Provide EEO training to all responsible management officials regarding

their obligations under Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. � 2000e et seq.; and

The agency shall consider taking appropriate disciplinary action against

their responsible management officials. The Commission does not consider

training to be disciplinary action. The agency shall report its decision

to the compliance officer. If the agency decides to take disciplinary

action, it shall set forth the reason(s) for its decision not to impose

discipline. If any of the responsible management officials have left

the agency's employ, the agency shall furnish documentation of their

departure date(s).

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 General Mail facility located

in Jackson, Mississippi, 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 (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. 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. If you

file a request to reconsider and also file a civil action, 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

March 19, 20004

__________________

Date

1Despite complainant's contention that the agency received a copy of

the AJ's decision on July 30, 2003, complainant does not support his

contention with any corroborating evidence, and thus we accept the

agency's representation that it received the AJ's decision on August

4, 2003.

2See Jackson v. Department of Treasury, EEOC Appeal No. 07A10027 (August

14, 2002).