01986168
03-10-1999
Emanuel L. Acree, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Emanuel L. Acree, )
Appellant, )
)
v. ) Appeal No. 01986168
) Agency No. 4-H-300-1123-96
William J. Henderson, ) Hearing No. 110-98-8044X
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
On August 6, 1998, Emanuel L. Acree (appellant) timely appealed the
final decision of the United States Postal Service (agency), dated
July 24, 1998, which concluded he had not been discriminated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In his complaint, appellant had alleged
that officials at the Postmaster at the agency's Washington, Georgia,
Post Office discriminated against him on the basis of his race (African
American) when, in April 1996, he was terminated from his employment as
a Rural Carrier Associate. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001.
The evidence of record establishes that appellant was first hired by
the agency in April 1995 as a Rural Carrier Associate (RCA) for the
Washington, Georgia, Post Office.<1> In this position, appellant provided
coverage on Postal Route Five for the regularly assigned Letter Carrier
during his off-days and when he was otherwise unavailable. Since the RCA
position offered only part-time hours, appellant had another full-time
job where he worked from 8:00 p.m. to 8:00 a.m. At the time appellant
accepted the RCA position, the Washington Postmaster (Caucasian) informed
appellant that the reporting time for Route Five was 8:00 a.m. Appellant
received permission from the Postmaster to start at 8:05 a.m. so that he
could get to the Post Office from his other job.<2> The evidence further
showed that the regular Carrier on Route Five (white) was routinely
allowed to clock in thirty minutes early for work because he finished
his second job at 6:00 a.m. and drove directly to the Post Office.
Appellant began reporting to work on April 19, 1995 at 8:05 a.m., and
maintained that reporting time without incident until mid-October 1995,
when the Postmaster changed his reporting time to 7:30 a.m.<3> It is
undisputed that appellant performed well in his position. After the
change until his termination in April 1996, appellant reported to work
at 8:05 a.m. approximately 25 times and at 7:30 a.m. approximately
23 times. By letter from the Postmaster, appellant was notified that,
effective April 6, 1996, his employment was terminated due to his failure
to consistently report to work at 7:30 a.m. Appellant's termination
was effective just three weeks prior to his completion of his one-year
probationary period.
Records establish that the letter carriers assigned to Route Five
typically left the Post Office to begin delivering the mail between 9-10
a.m. The official "leave time" for the route was 9:00 a.m. The carriers
did not sort their own mail and the Clerk (African American) who sorted
the mail for the carriers testified that, at the time appellant worked at
the agency, he recommended to the Postmaster that the carrier on Route
Five start at 8:30 a.m. because it was the last route to be ready for
delivery in the morning and a later start time would prevent the carrier
from having nothing to do while he waited for his mail. The Postmaster
did not accept this recommendation. However, less than a year after
appellant was terminated, the regular carrier on Route Five died, and
the Postmaster changed his replacement's start time to 7:45 a.m. and
later to 8:00 a.m.
The evidence established that the Postmaster had been in charge of
the Washington, Georgia, Post Office for ten years at the time of
the events at issue. In that capacity, he served as the sole hiring
official for the office. He testified that he hired off a hiring
register sent to him from the Atlanta District. He further stated that
African American candidates appeared on almost every hiring register he
received because the area was about 50% African American. However, he
said that he did not remember ever hiring an African American candidate
when he had the choice of a Caucasian on the register. The record shows
that the Postmaster hired four African Americans during his ten-year
tenure, but only retained one beyond his or her probationary period.
A Caucasian employee who had worked at the post office for many years,
and described himself as a friend of the Postmaster, testified that the
Postmaster once told him that he did not want to hire black employees
unless forced to do so. The Postmaster did not recall making this remark.
On February 3, 1997, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaints and conducted
investigations. At the conclusion of the investigations, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ) on his complaint.
On May 19, 1998, following a hearing at which five witnesses testified,
the AJ issued a decision from the bench finding appellant had met his
burden of proving he had been discriminated against by the agency on
the basis of his race when he was terminated from his position at the
Washington, Georgia, Post Office. While the AJ conceded that the agency's
reason for terminating appellant--his inability to consistently report
at the 7:30 a.m. start time--appeared legitimate on its face, she went
on to find that the evidence showed that the Postmaster permitted other
employees (Caucasian), including the regular carrier on Route Five, to
routinely deviate from their designated start times. Moreover, the AJ
found that there was no business reason established for the earlier start
time as the evidence showed that the carrier for Route Five typically
stood around with nothing to do until at least 9:00 a.m. when the mail
was ready to deliver. The AJ noted that the Postmaster never informed
appellant of the impending schedule change despite his full knowledge that
appellant's other job would conflict with the new schedule. The AJ also
considered relevant evidence of the Postmaster's racial animus, including:
the Postmaster's history of rarely hiring African American employees;
never hiring an African American to a full-time or career position; only
retaining one African American employee (the brother of an outspoken
union official) beyond his probationary period; and the statement made
by the Postmaster that he would only hire an African American employee
if forced to do so. The AJ held that the totality of the evidence led to
the conclusion that the Postmaster only hired appellant because he was
the only candidate available, and then manipulated his start time to get
rid of appellant just prior to the end of his probationary period so that
he could try to hire a Caucasian employee off a new hiring register.<4>
On July 24, 1998, the agency issued its final decision, rejecting the
AJ's recommended decision, and entering a finding of no discrimination.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
After careful consideration of the arguments of the parties, and
based upon the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of discrimination. In reaching this decision,
the Commission notes that the credibility determinations of the AJ are
entitled to deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990).
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the AJ's
finding of race discrimination. In order to remedy appellant for its
discriminatory actions, the agency shall, comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make an unconditional offer of reinstatement to
appellant of the position of Rural Carrier Associate at the Washington,
Georgia, Post Office. If appellant accepts this offer, he shall be
provided any retraining necessary to perform in the position. He shall
also be considered to have completed his probationary period, and shall
be provided retroactive seniority and any other employment benefits
lost as a result of the agency's discriminatory actions. All records
pertaining to his termination shall be expunged from appellant's official
personnel file and any other agency personnel records.
(B) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award appellant back pay, with
interest, for all wages and benefits lost as a result of his unlawful
termination. The agency shall determine the appropriate amount of
back pay, interest and other benefits due appellant, pursuant to 29
C.F.R. � 1614.501. The agency may not off-set the wages appellant
received from his night job from his back pay award. The appellant
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 appellant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be
due. The appellant 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."
(C) The agency shall post at the Washington, Georgia, Massachusetts,
Post Office 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.
(D) The agency shall provide immediate training to the Postmaster
responsible for appellant's termination in his duties and obligations
under Title VII. The agency shall also consider disciplinary action
against the Postmaster for this matter.
(E) The agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages incurred as result
of the agency's discriminatory actions which resulted in appellant's
termination. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Rivera v. Department of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). See also, Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992), request for reconsideration denied,
EEOC Request No. 05930306 (February 1, 1993). The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages. Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights.
(F) 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 appellant,
including evidence that the corrective action has been implemented.
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.
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� (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.
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 an 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 EIGHTY (180)
CALENDARS 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:
March 10, 1999
_________________ _______________________________
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 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Washington, Georgia, Post Office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Washington, Georgia, Post Office has been found to have discriminated
against the individual affected by the Commission's finding on the
bases of his race when he was terminated from his position as a Rural
Carrier Associate. The Commission has ordered that this individual be
reinstated with an appropriate back pay award and a determination of
his entitlement to compensatory damages. The Washington, Georgia, Post
Office 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 and will not retaliate
against employees who file EEO complaints.
The Washington, Georgia, Post Office 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
1 At the time he was hired, appellant was the only person on the hiring
register to appear for an interview, so the Postmaster had no choice
but to select him.
2 The Postmaster apparently could not deny this request as the agency's
regulations permitted an employee to clock in five minutes early or late
for work.
3 The Postmaster admitted that he never informed appellant of the
impending schedule change despite his full knowledge of the conflict
with appellant's other job.
4 The record establishes that the Postmaster did, indeed, hire a
Caucasian RCA off a new register after appellant's termination.