01A02748
03-19-2003
Terri Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terri Lee v. United States Postal Service
01A02748
03-19-03
.
Terri Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02748
Agency Nos. 1-J-607-0070-99, 1-J-607-0128-99
Hearing Nos. 210-99-6277X, 210-99-6258X
DECISION
Complainant timely initiated an appeal from the agency's final
action concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
action, but MODIFIES the ordered relief.<1>
The record reveals that complainant, a casual employee at the agency's
Chicago Central Facility, filed a formal EEO complaint on August 26,
1998, alleging that the agency had discriminated against her on the
bases of disability (carpal tunnel syndrome) and reprisal for prior EEO
activity when:
(1) on or about February 22, 1998, she was removed from her position
as �keyer� on the small parcel bundle sorter; and
on August 15, 1998, she was notified of the expiration of her appointment
as a casual employee.
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 discrimination. The AJ concluded that complainant established
by a preponderance of the evidence that reprisal motivated the agency
in its failure to renew her casual appointment. The AJ directed the
agency to post a �Notice to Employees,� which stated that a violation
of the Rehabilitation Act had occurred at the facility. The agency's
final action adopted the AJ's decision.
On appeal, complainant contends, among other things, that the AJ
incorrectly determined that she was not a person with a disability<2>
and denied her back pay, reinstatement, and compensatory damages.
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.
With respect to her findings of discrimination, the Commission determines
that the AJ's findings of fact are supported by substantial evidence in
the record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
As to compensatory damages, we note that complainant failed to present
evidence of said damages at the hearing despite the AJ clearly stating
that both liability and damages would be heard at the hearing. Hearing
Transcript (HT) at p. 6. Therefore, we discern no basis to disturb the
AJ's decision with respect to compensatory damages.
With respect to the AJ's findings on backpay, the Commission determines
that the AJ erred. The AJ found that, since complainant was on medical
leave due to surgery on July 10, 1998, and according to her physician,
she would be unable to return to work for a period of three to six months,
complainant would not have been able to work for any part of the 89-day
period of renewed appointment. The Commission finds, however, that in
the absence of evidence to the contrary, complainant would have resumed
her employment with the agency after the three to six month period.
We note that the record reveals that other casual employees were
reappointed to other positions per the request of agency's Operations
during the relevant time period. See Report of Investigation (ROI),
at p. 59. Accordingly, in order to provide a remedy to complainant for
the discriminatory conduct, the agency shall pay complainant back pay
for an 89-day renewed casual appointment. The agency shall also review
its records and determine whether casual employees similarly situated
to complainant typically had their casual appointments renewed at their
expiration date; if so, complainant shall be deemed to have merited such
a renewal. In addition, should the agency's records reflect that casual
employees similarly situated to complainant typically were converted to
permanent employee status, the agency shall offer complainant placement
in such a position and back pay, including benefits and seniority,
to the date complainant accepts or declines such a position.
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final action, but modify the ordered relief.
ORDER
The agency is ordered to take the following remedial action:
1. The agency shall determine the appropriate amount of backpay with
interest for one 89-day casual appointment, which would have begun
in January 1999, 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 backpay 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."
2. Within thirty (30) days from the date this decision becomes final,
the agency shall review its records and determine whether casual
employees at the Chicago Central Facility who were similarly situated
to complainant in January 1999 typically had their casual appointments
renewed at their expiration date; if so, complainant shall be deemed
to have merited such a renewal. The agency shall then, with respect to
each renewal, compute the amount of backpay and benefits due complainant
consistent with paragraph No. 1 of this order. Should the agency's
record reflect that casual employees similarly situated to complainant
typically were converted to permanent employee status, the agency shall
offer complainant placement in such a position, and backpay, including
benefits and seniority, to the date complainant accepts or declines such
a position. However, if the agency shows that casual employees similarly
situated to complainant were not converted to permanent employee status,
the agency shall offer complainant placement in a casual employee position
in the Chicago Central Facility. Complainant shall be offered 30 days
in which to determine whether to accept the position.
3. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
relevant EEO law.
4. The agency shall consider taking disciplinary action against the
management officials identified as being responsible for failure to renew
complainant's casual appointment. The agency shall report its decision.
If the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
5. 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 back pay 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 Chicago Central Facility, Chicago,
Illinois 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 (R0900)
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
__03-19-03________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., has occurred at this 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The United States Postal Service, Chicago Central Facility,
Chicago, Illinois confirms its commitment to comply with these statutory
provisions.
The United States Postal Service, Chicago Central Facility, Chicago,
Illinois supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The United States Postal Service, Chicago Central Facility, Chicago,
Illinois has been found to have discriminated against an employee in
reprisal when it failed to renew her casual appointment. The United
States Postal Service, Chicago Central Facility, Chicago, Illinois has
been ordered to take specified steps to ensure that such discrimination
does not reoccur, pay backpay, and to the extent appropriately proven,
pay attorney fees and costs. The United States Postal Service, Chicago
Central Facility, Chicago, Illinois 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 United States Postal Service, Chicago Central Facility, Chicago,
Illinois 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 16141 We note that the agency adopted the EEOC
Administrative Judge's finding of discrimination, including the ordered
relief. While the Commission affirms the final action, it modifies the
remedy provided in the Administrative Judge's decision.
2 The Commission will not determine whether the agency discriminated
against complainant on the basis of disability because, even if
complainant were found to be an individual with a disability, she would
be entitled to precisely the same remedy as dictated by a finding of
reprisal discrimination alone.