0720080063
02-25-2009
Stanley S. Takahashi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stanley S. Takahashi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720080063
Hearing No. 443200700001X
Agency No. 4E570001406
DECISION
On July 31, 2008, the EEOC Administrative Judge (AJ) issued a decision
finding that the agency had violated the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., by terminating
complainant during his probationary period at its Spearfish postal
facility. 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 AJ's finding that the agency discriminated against complainant
on the basis of his age. The agency also requests that the Commission
affirm its rejection of the AJ's order to award complainant compensatory
damages. The agency concluded that the evidence in the record supports
the AJ's decision finding that complainant was not a victim of disability
discrimination, and it will implement that portion of the decision.
However, with respect to the part of the AJ's decision concerning
the finding of age discrimination, the agency concluded that it is not
supported by the evidence, and it thereby did not implement that portion
of the AJ's decision.
At the time of events giving rise to this complaint, complainant worked
as a Part-Time Flexible City Letter Carrier at the agency's Spearfish
Post Office facility in South Dakota. On May 24, 2006, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of disability (leg, hip, and back injuries) and age (51)
when he was terminated during his probationary period.
The agency contends that complainant was terminated for poor performance.
However, complainant asserted that he showed consistent improvement
throughout his employment with the agency and was not given fair
consideration. Complainant further asserted that he delivered his route
in less than five hours, as requested on February 24, 2006 during his
counseling session with his supervisor. Complainant maintained that he
surpassed the computer generated goals for his route.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on August 6, 2007 and
issued a decision on July 31, 2008. The agency subsequently issued a
final order rejecting the AJ's finding that complainant proved that he
was subjected to discrimination as alleged.
The AJ initially found that complainant failed to establish disability
discrimination because he did not show that his impairments substantially
limited any major life activities. However, with respect to complainant's
claim based upon age, the AJ concluded that complainant established that
more likely than not, the reasons provided by the agency were a pretext
for discrimination.
In reaching this conclusion, the AJ found that while the agency stated
through at least two of its officials that complainant was considered
a marginal performer, complainant was clearly meeting the agency's
legitimate expectation at the time of his termination. He met the goals
established during the February 2006 counseling session. He met the
computer projected times. There is evidence complainant was doing the
job as well as the person who delivered the route before he was hired and
who delivered the route after his termination. Complainant's co-workers
observed that he was doing a satisfactory job. The AJ concluded that
the overwhelming weight of the evidence, both objective and subjective,
supports the position that complainant was meeting the agency's legitimate
expectations when he was terminated. The AJ found that the agency's
assertions that complainant was not meeting its legitimate expectations
were not credible.
The record reflects that in his order finding discrimination, the AJ
initially ordered the payment of compensatory damages. The ADEA does
not provide for compensatory damages. Fraley v. Dept. of Veterans
Affairs, EEOC Appeal No. 01A33418, FN 1 (May 4, 2004) (compensatory
damages and attorney's fees and costs are not available under the ADEA),
citing Falks v. Department of the Treasury, EEOC Request No. 05960250
(September 5, 1996). However, the AJ subsequently amended his decision
to remove compensatory damages as a remedy in this case. Thus, the AJ
ultimately made no award of compensatory damages.
In his appeal, complainant asks the Commission to affirm the AJ's
finding of discrimination in this matter. Complainant asserts that the
AJ correctly relied upon management and other employee testimony, along
with "computer projected times accepted by the agency," as support for
his actual performance level. Complainant also contends, consistent
with the AJ's determination, that the agency unfairly evaluated his
performance "as if he would be a 30 year employee." In its appeal,
the agency is not only appealing the AJ's finding of discrimination,
but also the AJ's award of compensatory damages. The agency mainly
argues that the AJ's post-hearing factual findings are not based upon
substantial evidence and must be reversed. Additionally, the agency
argues that the AJ improperly substituted his judgment for that of the
agency in determining whether complainant's performance was acceptable.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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. While the agency maintains that
complainant was terminated for poor performance, the record is replete
with evidence establishing that complainant was meeting the agency's
legitimate expectations when he was terminated. Thus, the AJ correctly
determined that complainant proved that the agency's articulated reasons
for his termination were a pretext for age discrimination. The Commission
also affirms the AJ's award of no compensatory damages in this matter.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order pertaining to the AJ's finding of age
discrimination 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:
(1) The agency shall reinstate Complainant to the position of part-time
flexible city carrier in the Spearfish Post Office (or some other
mutually agreeable position/facility), within 30 days. Complainant
shall be given a minimum of 30 calendar days from receipt of the offer
within which to accept or decline the offer. Failure to accept the offer
within the time period set by the agency will be considered a rejection
of the offer, unless complainant can show that circumstances beyond his
control prevented a response within the time limit. Complainant shall be
instructed on the expectations of the position. The expectations of the
position shall be the same expectations required of any new employee in a
probationary period. The Complainant shall receive sixty days on-the-job
training designed to allow him to adequately perform the duties of the
position. Complainant may choose a shorter training period, if he so
desires. Complainant shall then be allowed to complete the remaining days
of his 90 day probationary period. The 30-day and 60- day evaluations
shall be expunged from his record. Upon successful completion of the
probationary period. Complainant shall be entitled to all the benefits
afforded an employee who has successfully completed probation.
(2) 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."
(3) The agency shall provide EEO training to the responsible management
officials identified in this complaint on their responsibilities to
prevent employment discrimination under the ADEA within 120 calendar
days after this decision becomes final.
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 Spearfish Post Office 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 25, 2009
__________________
Date
2
0720080063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0720080063