01a04633
10-13-2000
Steven Markley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.
Steven Markley v. United States Postal Service
01A04633; 07A00028
October 13, 2000
.
Steven Markley,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes/Mid West Region),
Agency.
Appeal Nos. 01A04633; 07A00028
Agency No. 4J-493-0129-98
Hearing No. 230-99-4052X
DECISION
Following its April 14, 2000 final order, the agency filed a timely appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405.<1> On May
15, 2000, complainant cross appealed. At issue is an EEOC Administrative
Judge's (AJ) finding that the agency retaliated against complainant for
his prior protected activity when complainant was not informed why he
could not report to work on March 23, 1998. Accordingly, we will now
consolidate the appeals for review of the AJ's decision on liability
and compensatory damages.<2> For the following reasons, the Commission
reverses the agency's final order.
Complainant, a Letter Carrier at an agency facility in Kalamazoo,
Michigan filed a formal EEO complaint with the agency on June 10, 1998,
alleging that the agency had discriminated against him on the bases of his
physical disabilities, age (DOB: 01/03/53), and in retaliation for prior
protected activity. At the conclusion of the investigation, complainant
was provided a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding retaliation. The AJ found that complainant
failed to establish a prima facie case of age or disability discrimination
but did establish that, contrary to the responsible management official's
(RMO) contention, the RMO's refusal to inform complainant why he could
not return to work was motivated by retaliatory animus. The AJ ordered
the agency to restore all sick and/or annual leave taken by complainant
from March 19 through March 30, 1998 and to provide back pay for any time
he would have worked between March 23 and March 28, 1998. The AJ also
awarded $1,000.00 in non-pecuniary damages for the emotional distress
complainant experienced as a result of believing he had been fired.
On appeal, the agency argues that, by operation of a settlement
agreement executed on April 19, 1999, complainant agreed to withdraw
the instant complaint, and thus it is improperly before the Commission.
In the alternative, the agency argues that the AJ erred in finding
that complainant established a prima facie case of retaliation because
there was no causal link between the adverse action and complainant's
prior protected activity. Complainant also appeals, requesting that
the Commission find that he was an individual with a disability within
the meaning of the Rehabilitation Act and that he was entitled to more
relief than that granted by the AJ, including but not limited to, back
pay for the period between March 23, 1998 and June 5, 1998.
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). The AJ's legal conclusions are subject to de
novo review by the Commission, regardless of whether a hearing was held.
Initially, the Commission addresses the agency's argument that by
operation of the settlement agreement, complainant has withdrawn the
instant complaint. The pertinent agreement language reads:
It is understood by the undersigned that this Agreement is in
full and complete settlement of EEO complaint, Case No. EEOC Docket
No. 230-99-4007X (Agency Case No. 4J-493-0043-98), in this or any other
forum, including MSPB, filed by the below named Complainant or on his
behalf relating to any matters that occurred prior to the execution of
this Settlement Agreement. Complainant agrees to voluntarily withdraw
any outstanding administrative complaints or appeals, and to request
that any administrative appeal be withdrawn. It is understood that this
settlement is contingent upon those complaints or appeals being withdrawn.
Further, it is understood that in withdrawing all grievances, appeals,
or complaints, Complainant waives his rights to an oral hearing or
further appeal on the matters raised...
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has
further held that it is the intent of the parties as expressed in the
contract, not some unexpressed intention, that controls the contract's
construction. See Eggleston v. Department of Veterans Affairs, EEOC
Request No. 05900795 (August 23, 1990). In ascertaining the intent of
the parties with regard to the terms of a settlement agreement, the
Commission has generally relied on the plain meaning rule. See Hyon
v. United States Postal Service, EEOC Request No. 05910787 (December
2, 1991). This rule states that if the writing appears to be plain
and unambiguous on its face, its meaning must be determined from the
four corners of the instrument without resort to extrinsic evidence of
any nature. See Montgomery Elevator Co. v. Building Eng'g Sews. Co.,
730 F.2d 377 (5th Cir. 1984). However, if the meaning of the agreement
is open to question, the circumstances in which the contract was made may
be considered in interpreting the contract. See Johnson v. Department
of the Interior, EEOC Request No. 05930532 (March 31, 1994).
The Commission finds the pertinent agreement language to be ambiguous.
If the intent of the parties, as the agency argues, was that the
agreement should operate to resolve all EEO complaints filed prior to
its execution, then there is no explanation as to why the agency failed
to raise this argument at the hearing, at which it actively litigated,
approximately eight months after the agreement was signed. In considering
this evidence, we find that the agreement is properly interpreted to mean
that complainant agreed to voluntarily withdraw any outstanding grievances
and administrative complaints or appeals in connection with the issues
raised in agency case no. 4J-493-0043-98 and not, as the agency requests
we find, in connection with the issues raised in the instant complaint.
After a careful review of the record, the Commission finds that the
AJ's factual findings are supported by substantial evidence and that
her decision referenced the appropriate regulations, policies, and laws.
There is no evidence in the record from which we can draw an inference
of discrimination on the bases of age or physical disability, but the
evidence does support a prima facie case of retaliation. In reaching
this conclusion, we find that within ten days of the RMO's meeting
with the EEO Investigator, the RMO angrily and aggressively ejected
complainant from the postal premises and refused to inform him why he was
not being permitted to return to work. Although the agency proffered
that complainant was aware that the doctor had determined he was a
threat to himself or others, the AJ disbelieved the agency and found
that complainant was not aware of what the doctor had determined, was not
given appropriate paperwork concerning his rights or responsibilities and
was not informed that he needed medical clearance until a meeting was
convened one week after the ejection. Having found that the agency's
legitimate, nondiscriminatory explanation was false, the AJ concluded
that the agency's failure to inform complainant why he was being sent
home was motivated by retaliatory animus. We discern no basis to disturb
the AJ's decision. See Reeves v. Sanderson Plumbing Products, Inc.,
120 S. Ct. 2097 (2000).
We are unpersuaded by complainant's contention that he is entitled to
further back pay since the AJ ordered compensation for the period of time
he was unaware of what he needed to do before he could return to work.
Furthermore, we find the AJ's award of $1,000.00 in non-pecuniary damages
for complainant's shock, fatigue and humiliation to be appropriate.
Several Commission decisions have awarded compensatory damages in
cases similar to complainant's: Schral v. Department of Veterans
Affairs, EEOC Appeal No. 01961614 (December 15, 1999) ($1,500.00 where
complainant presented evidence that sexual harassment caused her to
become shocked and upset and to have nightmares); Mozell v. Department
of the Interior, EEOC Appeal No. 01981521 (August 12, 1999) ($1,000.00
where complainant's supervisor took steps to undermine her authority
over her subordinates based on sex and reprisal, causing complainant to
become much more emotional than normal, including becoming irritable and
paranoid; and Weatherspoon v. Department of Agriculture, EEOC Appeal
No. 01966395(March 4, 1999) ($1,000.00 where complainant was denied a
promotion based on race, causing her to feel humiliated and degraded,
and become distrustful and defensive). This amount takes into account
the severity and the likely duration of the harm done to complainant
by the agency's action. The Commission further notes that this amount
meets the goals of not being motivated by passion or prejudice, not being
"monstrously excessive" standing alone, and being consistent with the
amounts awarded in similar cases. See Cygnar v. City of Chicago, 865
F.2d 827, 848 (7th Cir. 1989).
Therefore, after a careful review of the record, including the parties'
arguments on appeal and arguments and evidence not specifically discussed
in this decision, the Commission reverses the agency's final action,
finds that the agency retaliated against complainant, and orders the
agency to take remedial action in accordance with this decision and the
ORDER below.
ORDER
1. Within thirty (60) calendar days of the date this decision becomes
final, the agency shall restore all sick and/or annual leave taken by
complainant from March 19 through March 30, 1998.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award complainant back pay, with
interest, for all wages and benefits lost for the days he would have
worked between March 23 and March 28, 1998. The agency shall determine
the appropriate amount of back pay, interest, and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501(c). 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. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay complainant $1,000.00 in non-pecuniary
damages.
4. If complainant has not already done so, complainant shall submit his
petition for attorney's fees and costs to the AJ in accordance with her
order within (30) thirty days from the date this decision becomes final.
5. The agency shall conduct training for the relevant supervisory
personnel at its Kalamazoo, Michigan facility regarding their obligations
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.
6. 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 foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Kalamazoo, Michigan 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 (K0800)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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
October 13, 2000
__________________
Date
1 On 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. The regulations, as amended, may also be found
at the Commission's website at www.eeoc.gov.
2 The AJ's decision on attorney's fees and costs is not presently before
the Commission.