01976997
11-24-1998
Stephen J. Zarski v. United States Postal Service
01976997
November 24, 1998
Stephen J. Zarski, )
Appellant, )
) Appeal No. 01976997
v. ) Agency No. 1E-891-1002-96
) Hearing No. 340-96-3740X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
The issues presented are whether appellant proved, by a preponderance
of the evidence, that he was discriminated against because of his race
(Caucasian), color (White), religion (Greek-Catholic), sex (male),
national origin (Polish-Lithuanian), age (date of birth May 15, 1948),
and reprisal (prior EEO activity) when: (1) he was told not to use the
laser scanner equipment from July 21 through July 24, 1995; and (2)
he was issued a Letter of Warning (LOW) on October 27, 1995.
On appeal, appellant contends that a third issue, i.e., a manager
performed appellant's duties to his monetary detriment, was not withdrawn,
as stated by the Administrative Judge (AJ) at the hearing, but was merely
referred to arbitration. As this issue was then discovered after the
hearing not to be pending arbitration after all, appellant contends
that it should now be considered on appeal. Appellant also contends
that the required notice posted after discrimination was found did not
have any information indicating it was posted as a result of appellant's
particular complaint. In response, the agency contends that neither at
the hearing nor in appellant's closing argument presented four months
later was any concern expressed about this third issue not being included
in the hearing.
At the time of his complaint, appellant was employed by the agency
as an Air Records Processor, PS-5. Believing that he was a victim of
discrimination, appellant sought EEO counseling and later filed a formal
EEO complaint dated December 13, 1995.
The agency complied with all procedural and regulatory prerequisites,
and on May 29, 1997, the EEOC AJ issued a Recommended Decision (RD)
finding no discrimination in regard to issue (1) above, but finding
discrimination based on reprisal in regard to issue (2), the agency's
issuing of the LOW. Subsequently, the agency adopted the RD as its own
final decision but modified the remedy by: (1) first noting that the
LOW had already been rescinded in the grievance arbitration process,
the agency then followed the AJ's recommendation to ensure that the LOW
was removed from appellant's records and not relied upon in the future;
(2) the agency agreed to post the required notice that appellant had
been discriminated against; and (3) the agency decision omitted the AJ's
suggested corrective action of backpay for appellant, since there was
no backpay due appellant as a result of receiving the LOW.
After a careful review of the record in its entirety, the Commission finds
that with the exception of the issue of backpay, the AJ's RD summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. We therefore discern no basis to disturb the AJ's finding
of discrimination based on reprisal when the agency issued the LOW.
We note, however, that the two issues raised by appellant on appeal must
still be decided.
As to appellant's contention on appeal that a third issue, whether a
supervisor performed appellant's duties to his monetary detriment, was
not withdrawn by him as stated by the AJ, we find that it was within the
discretion of the AJ to withdraw this issue under 29 C.F.R. �1614.109.
This regulation grants the AJ broad discretion in conducting a hearing.
In this regard, we note that appellant did not object to this issue
not being heard either at the pre-hearing conference or at the hearing
itself, when the issue was referred to arbitration. Nor did appellant's
representative make any objection in his closing argument delivered
four months after the hearing. Therefore, we find that this issue,
by being referred to arbitration at the instigation of appellant, was
effectively withdrawn from the hearing by him.
As to appellant's contention that the notice of discrimination did not
indicate that it was posted as a result of his particular complaint,
however, we find that the agency did not fully comply with the
requirements of 29 C.F.R. �1614.501(a). As interpreted by the
Commission, this regulation requires the agency, among other things, to
specify exactly how the complainant was discriminated against and what
corrective action was taken by the agency. We, therefore, enclose a
revised Notice to be posted which contains the required information,
including an Order for those management officials found to have
discriminated against appellant to be provided EEO training.
It is accordingly the decision of the EEOC to AFFIRM the agency's final
decision in this matter as CLARIFIED in the ORDER below:
ORDER (C1092)
The agency is ORDERED to take the following remedial action:
1. The agency is ORDERED to post at its Las Vagas, NV Processing
and Distribution Center, 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.
2. The agency is directed to conduct training for those agency management
officials who were found to have discriminated against appellant on the
basis of reprisal by issuing him a Letter of Warning. The agency shall
address these employees' responsibilities with respect to eliminating
discrimination in the Federal workplace and all other supervisory and
managerial responsibilities under equal employment law.
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 corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Nov 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at the agency's Las Vegas,
Nevada Processing and Distribution Center (hereinafter "facility").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, compensation, promotion,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated against an employee at
this facility on the basis of reprisal for protected EEO activity,
by issuing him a Letter of Warning (LOW) for allegedly behaving in
an unprofessional manner and refusing to work with casual employees.
It has remedied the employee affected by the Commission's finding by
rescinding the LOW and removing it from the employee's personnel files,
and by conducting EEO training for the management officials responsible
for the reprisal to ensure that such discrimination will not recur.
The facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614