01991535
05-31-2001
Stephen Millard, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stephen Millard v. United States Postal Service
01991535
05-31-01
.
Stephen Millard,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991535
Agency Nos. 4F-926-1239-95; 4F-926-1324-95
Hearing Nos. 340-97-3131X; 340-97-3132X
DECISION
INTRODUCTION
On December 9, 1998, Stephen Millard (hereinafter referred to as
complainant) filed a timely appeal from the November 25, 1998, final
decision of the United States Postal Service (hereinafter referred to as
the agency) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is REVERSED.
ISSUES PRESENTED
The issues presented in this appeal are (a) whether the complainant has
proven, by a preponderance of the evidence, that the agency discriminated
against him on the bases of race (white), sex, and reprisal with regard
to eleven claims involving disciplinary actions, harassment, removal, and
other terms and conditions of employment from April to August 1995, and
(b) whether the remedy provided by the Administrative Judge was proper.
BACKGROUND
Complainant filed formal complaints on July 24 and October 10, 1995.
Following each investigation, he requested a hearing before an
Administrative Judge (AJ). An AJ held hearings on five days between
August 1997 and February 1998. On March 24, 1998, the AJ issued a
recommended decision (RD) finding reprisal discrimination with regard to
nine issues and no reprisal discrimination on two issues [(c) and (i),
infra] and all other bases. Subsequently, the AJ conducted a hearing
in September 1998 with regard to complainant's claim for compensatory
damages and issued a decision awarding him, in addition to back pay,
reinstatement, and attorney's fees, $16,399.38 in pecuniary damages,
$150,000.00 in non-pecuniary damages, and front pay. On November 25,
1998, the agency issued its final decision, finding no discrimination
on all claims and bases. The agency did not address the relief awarded
by the AJ. Appellant has filed the instant appeal.
Appellant had worked for the agency since 1976 as a relief carrier and
was assigned to the post office in Glendora, California. Complainant
also functioned as a union shop steward and represented employees in EEO
matters. In the first complaint, he alleged discrimination on the bases
of race (white), sex, and reprisal when:<1> (a) he was issued a letter of
warning (LOW) on May 2; (b) he received a seven-day suspension on May 5;
(c) his claims for workers' compensation and continuation of pay were
rejected; and (d) he was verbally abused by two supervisors. In his
second complaint, he alleged discrimination based on reprisal when (e)
he was issued a 14-day suspension on June 28; (f) he was ordered to move
his vehicle on June 28; (g) he was assigned more walking on overtime; (h)
he was checked on a daily basis; (i) he was not paid while representing
employees; (j) he was verbally abused in July; and (k) he was issued a
Notice of Removal on August 3.
The AJ set out the relevant facts of this matter, inter alia, describing
a history of management's efforts to interfere with complainant's
union-related and EEO activities through harassing behavior and
imposition of discipline. Among other things, the AJ noted that
complainant was issued discipline for turning away from his case and
engaging in conversation, something commonly done by other carriers, and
for exceeding his allotted meeting time with employees by two minutes,
after management unilaterally imposed a 15-minute limit on such meetings.
Also, he was charged with swearing at a supervisor (S1), conduct commonly
engaged in by S1, the other supervisor (S2), and other employees. In May,
managers began to follow complainant on his route, allegedly to address
performance problems, but complainant garnered adverse media publicity,
and the agency stopped this practice. When he was assigned a new route
on June 20, he was issued discipline for taking extra time to deliver
the route on the first two days as compared to the former carrier who
was familiar with the route, while others carriers on new routes are
routinely given additional time to become familiar with them. The Notice
of Removal was issued to complainant after an altercation with another
employee (E1), although no valid evidence supported the agency's claim
that threats were made by both employees. E1 was not issued a removal
notice and settled his discipline after testifying against complainant at
the arbitration and EEO hearings on the event. The agency contended that
because complainant had prior discipline, he was subject to removal for
the altercation, whereas E1 had no prior discipline and was not removed.
The AJ found that the testimony of the agency managers was not credible
based on the substance of their statements and evidence in the record.
She found that S1's testimony was not credible and that she lacked a
reputation for veracity and that her testimony was generally self-serving
and unbelievable. As to S2, the AJ found that he was not credible,
noting, in particular, that although S2 and S1 testified they did not
single out complainant, other testimony and evidence indicated that they
did so. The AJ also found that the testimony of the Postmaster (PM)
was not credible. She found complainant's testimony to be credible,
as it was supported by the statements of others.
The AJ found that complainant established a prima facie case of reprisal
discrimination with regard to his allegations concerning the disciplinary
activities taken by the agency. She found that the timing of the
agency's disciplinary actions against complainant demonstrated that
its reasons for its actions were a pretext for reprisal discrimination.
For example, she held that the initiation of the program of observation of
carriers began shortly after circulation of a petition and ended after
complainant had been reprimanded. Also, she held that management's
action removing complainant was based on manufactured evidence and that
failure to discipline E1 demonstrated the discriminatory and retaliatory
nature of the discipline against complainant.
In remedy, the AJ ordered that complainant's discipline be rescinded
and that he be reinstated with all benefits lost due to the agency's
retaliation; that his attorney be paid reasonable attorney's fees; and
that a hearing be held to determine the amount of compensatory damages
due complainant, if any. In September 1998,<2> the AJ held a hearing
and awarded complainant $12,926.19, plus additional accrued costs, in
pecuniary damages, $150,000 in non-pecuniary damages, and front pay for
two years, in case complainant elected not to return to work and seek
other employment or training.<3>
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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).
After a review of the record in its entirety, it is the decision of the
Commission to affirm the Administrative Judge's finding that the agency
discriminated against complainant in reprisal. The AJ's decision on the
merits of complainant's claims states the facts, correctly applies the
pertinent principles of law, and is supported by substantial evidence
in the record. In an administrative hearing, where the motivation
and credibility of witnesses are critical, the credibility findings
of the hearing officer are entitled to great weight, unless there is
substantial evidence in the record to support a contrary assessment.
See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474
(1951); 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). Based on our review of the record, we
find that the credibility findings
and the decision on the merits of the AJ were correct.
Relief
We now turn to examination of the relief afforded by the AJ. We find
that complainant is properly entitled to back pay and reinstatement
to employment, either to the Glendora facility or another facility
acceptable to him, and out-of-pocket expenses and interest.<4> Next,
we find that complainant is entitled to attorney's fees at the rate of
$200 per hour and costs. In addition, we find that all disciplinary
documents should be removed from complainant's agency files and that
the PM, S1, and S2 should receive EEO-related training, in supplement
to any other action taken by the agency.
Compensatory Damages
The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory
damages as relief for intentional discrimination in violation of
Title VII. 42 U.S.C. � 1981a. Compensatory damages are recoverable
in the administrative process. West v. Gibson, 119 S.Ct. 1996 (1999);
see Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992),
req. to recon. den., EEOC Request No. 05930306 (February 1, 1993).
Compensatory damages are awarded for losses and suffering due to the
discriminatory acts or conduct of the agency and include past pecuniary
losses, future pecuniary losses, and non-pecuniary losses that are
directly or proximately caused by the agency's discriminatory conduct.
See Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. N9152 (July 14, 1992)
(EEOC Notice), p. 8.
As to the award of compensatory damages, the Commission agrees
that complainant is entitled to such damages. We find that the AJ's
determination of pecuniary compensatory damages was proper and correct.
See, infra. With regard to the award for non-pecuniary compensatory
damages, however, as discussed below, we disagree with the amount awarded
by the AJ. Based on a thorough review of the record, we find that the AJ
misapprehended the time period of the agency's discriminatory harassment,
ignored complainant's pre-existing psychological state and other causal
factors, and awarded an amount of non-pecuniary damages in excess of
the amount awarded by the Commission in similar cases.
Pecuniary Compensatory Damages: Complainant showed actual monetary
expenses and losses of $12,926.19 incurred as a result of the agency's
discriminatory actions. This amount includes medical expenses, debt
service costs, interest on certain obligations, and out-of-pocket
expenses. We find that these amounts were caused by and are the direct
result of the agency's discriminatory conduct and that complainant is
entitled to that amount in pecuniary monetary damages. Complainant has
not requested nor provided any evidence in support of future pecuniary
damages.
Non-pecuniary Compensatory Damages: In determining the amount of a
non-pecuniary damages award, the Commission considers the harm suffered as
a result of the agency's discriminatory action; the extent, nature, and
severity of the harm; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, EEOC Appeal No. 01934156 (July 22,
1994), req. to recon. den., EEOC Request No. 05940927 (December 11,
1995); EEOC Notice, pp. 11-12, 14; see also, Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Also, an award of non-pecuniary compensatory damages should reflect
the extent to which the agency's discriminatory action directly or
proximately caused the harm and the extent to which other factors also
caused the harm. See Johnson v. Department of Interior, EEOC Appeal
No. 01961812 (June 18, 1998). The amount of an award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th
Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,
574 (N.D. Ill. 1993).
We recognize that there are no definitive rules governing the amount
of an award of nonpecuniary compensatory damages and such awards vary
considerably. Sinnott v. Department of Defense, EEOC Appeal No. 01952872
(September 19, 1996). Nevertheless, there are several factors considered
by the Commission in determining the amount of an award. Compensatory
damage awards are predicated on the harm experienced as a result of the
agency's discriminatory action and take into account the severity of the
harm and the length of time that the injured party suffered the harm.
Carpenter v. Department of Agriculture, supra; EEOC Notice, pp. 13-14.
The agency is only responsible for those damages that are clearly shown
to be caused by the agency's discriminatory conduct. Carle v. Department
of the Navy, supra; Fazekas v. USPS, EEOC Appeal No. 01954627 (April
7, 1997).
In determining the amount of non-pecuniary compensatory damages, the
Commission seeks to make damage awards for emotional harm consistent
with awards in similar cases. Taking into account the nature, severity,
and duration of harm, the Commission has approved awards of non-pecuniary
compensatory damages in several cases where the complainant was subjected
to harassing behavior by supervisory personnel. See Chow v. Department of
the Army, EEOC Appeal No. 01981308 (August 5, 1999) ($100,000 for physical
and mental suffering due to supervisor's harassment over two-year period);
Carpenter v. Department of Agriculture, supra ($75,000 for non-pecuniary
damages in order to compensate the complainant for the deterioration
of her medical and emotional condition due to approximately a two-year
period of harassment); Finlay v. United States Postal Service, EEOC
Appeal No. 01942985 (April 29, 1997) ($100,000 in non-pecuniary damages
to compensate for severe psychological injuries over four years); Jackson
v. USPS, EEOC Appeal No. 01972555 (April 15, 1999) ($30,000 for emotional
harm during a six-month period); McCann v. Department of the Air Force,
Appeal No. 01971851 (October 23, 1998) ($75,000 in nonpecuniary damages
for a discriminatory discharge); and Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) ($50,000 for
non-pecuniary damages for psychological harm over several years).
It is the complainant's burden to provide objective evidence in
support of his claim and proof linking the damages to the alleged
discrimination. See Papas v. USPS, EEOC Appeal No. 01930547 (March
17, 1994); Mims v. Department of the Navy, EEOC Appeal No. 01933956
(November 24, 1993). The record herein contains a detailed report
by complainant's treating psychologist in support of his claim,
which describes complainant's medical treatment and psychotherapy, as
well as the results of several neuropsychological assessment measures.
According to this report, his treatment for psychological problems began
in mid-1994 upon the dissolution of his marriage. As his symptoms
worsened, he took a medical leave of absence from January through
March 6, 1995, when he was cleared to return to work. Soon after
his return to work, the agency began its campaign of discriminatory
retaliation against complainant, and he took a brief second medical
leave in early June 1995. Complainant's problems in the workplace and
his financial difficulties after his removal became the focus of his
therapeutic treatment. His psychologist reported symptoms of stress,
anxiety, disturbed sleep, impaired memory and concentration, fatigue,
irritability and withdrawal. She stated that, after his termination,
his psychological condition continued to deteriorate, and this conclusion
is substantiated by the psychological assessment tests. In addition,
the record contains a detailed letter from a family friend describing
complainant's conduct and behavior associated with the agency's actions
against him, including his social withdrawal after his removal. Finally,
complainant testified to his emotional state. We find that complainant
has presented sufficient evidence to demonstrate his entitlement to
non-pecuniary compensatory damages.
In her decision, the AJ noted that complainant was �being treated
for depression in May 1995 at the time the Agency began its concerted
effort to terminate him.� RD, p. 29. In addition, she stated that
complainant had suffered �severe emotional distress over a period of
some years.� RD, p. 30. A close reading of the record shows, however,
that these statements exaggerate the actual events. The record shows
that complainant's treatment for depression began the previous year
when his marriage ended and that his emotional state upon his return to
work in March 1995 was, in part, a result of personal matters. In her
report, the psychologist explained that complainant had originally
sought counseling in mid-1994 with regard to a marital separation and
that his psychological state worsened such that he took a leave of
absence for three months in early 1995. The amount of an award for
non-pecuniary compensatory damages must also consider the extent of the
agency's liability when the harm caused by its discriminatory action
may be an aggravation of a pre-existing condition. The Commission has
held that, where a complainant has a pre-existing emotional condition,
and that condition deteriorates as a result of discriminatory conduct,
the agency is liable for all additional harm. EEOC Notice, p. 11.
In considering such cases, the Commission relies on the principle that
"a tortfeasor takes its victims as it finds them." Wallis v. USPS,
EEOC Appeal No. 01950510 (November 13, 1995), citing, Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987).
There are two exceptions to this general rule, however. First, when
a complainant has a pre-existing condition, the agency is liable only
for the additional harm or aggravation caused by the discrimination.
EEOC Notice, p. 12. Second, if the complainant's pre-existing condition
inevitably would have worsened, the agency is entitled to a reduction in
damages reflecting the extent to which the condition would have worsened
even absent the discrimination. Wallis v. USPS, supra, citing, Maurer
v. United States, 668 F.2d 98, 99-100 (2d Cir. 1981); see Ward-Jenkins
v. Department of the Interior, supra, (15% reduction in award allowed
for pre-existing condition); Wallis v. USPS, supra (November 13, 1995)
($50,000 award for aggravation of pre-existing emotional condition);
Carpenter v. Department of Agriculture, supra (agency was liable for
exacerbation of preexisting asthmatic condition and for the additional
physical and emotional harm caused by the exacerbation of the asthma).
The AJ found that complainant was entitled to non-pecuniary compensatory
damages of $150,000 for the emotional harm caused by the agency's
discriminatory conduct. Nevertheless, we find that application of the
factors discussed, supra, warrant reduction of this amount. We note that
the agency's actions that we have found to be discriminatory extended
from April-May through August 1995, when complainant was removed. The
psychologist's report points to that period of time as the commencement
of his emotional distress due to the agency's discriminatory actions.
The agency therefore bears the costs of complainant's emotional harm
from that period through the present. The psychologist's report,
however, indicated that complainant's emotional state as a result of his
depression had required a leave of absence and that, when he returned to
work in March 1995, he remained under treatment. Thus, we find that
other factors, in addition to the agency's discriminatory actions,
affected complainant's mental state and the extent of harm.
Given the severity of the psychological harm experienced by complainant,
the egregiousness of the discriminatory acts by three supervisors,
including his removal, the duration of the harassment, and other awards
made by the Commission in similar cases, we find that complainant
is entitled to non-pecuniary damages in the amount of $75,000. Our
determination considers the emotional and physical symptoms described
by the complainant, his consulting psychologist, and his friend of many
years. We further find that this award is not motivated by passion or
prejudice, is not monstrously excessive, and is not inconsistent with
amounts awarded in similar cases. See Cygnar v. City of Chicago, supra;
EEOC v. AIC Security Investigations, Ltd., supra.
Front Pay
The AJ, without discussion, ordered that complainant be awarded front pay.
Front pay is an equitable remedy that compensates an individual when
reinstatement is not possible in certain limited circumstances. As a
general rule, the Commission prefers reinstatement into an appropriate
position to an award of front pay. Romero v. Department of the Air
Force, EEOC Appeal No. 01921636 (July 13, 1992). Where reinstatement
is not possible, however, the agency's obligation to make the victim of
discrimination whole may allow for an award of front pay. Tyler v. USPS,
EEOC Request No. 05870340 (February 1, 1998). The Commission has
held that front pay may be awarded in lieu of reinstatement when no
position is available, a subsequent working relationship between the
parties would be antagonistic, or the employer has a record of long-term
resistance to anti-discrimination efforts. See Cook v. USPS, EEOC Appeal
No. 01950027 (July 17, 1998). The fact that front pay is awarded in
lieu of reinstatement implies that the complainant is able to work but
cannot do so because of circumstances external to the complainant. Id.;
Tyler v. USPS, supra.<5>
Complainant has not presented any evidence that he is unable to work.
The record, including complainant's testimony and his psychologist's
report, indicates that complainant is able to work, although he remains
apprehensive about his return to the Glendora facility. Given his
willingness and ability to work and the availability of employment,
reinstatement, rather than front pay, is the appropriate remedy in
this case. The situation before us does not present any of the factors
identified, above, for an award of front pay that may not be addressed
by removal from the supervision of S1, S2, and the PM and assignment to
another facility. We find therefore that an award of front pay is not
appropriate and that the appropriate remedy is reinstatement and away
from the supervision of S1, S2, and the PM with all attendant seniority
and other rights of employment.
CONCLUSION
Accordingly, the agency's decision is REVERSED. The agency is directed
to comply with the Order, below.
ORDER (D1199)
The agency is ORDERED to take the following remedial actions:
A. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall reinstate complainant to his former carrier
duties, retroactive to the effective date of his removal, including all
the benefits and privileges of employment as if he had not been removed.
The complainant shall be free from supervision by S1, S2, and the PM and
shall not be assigned to a position within the chain of command of S1,
S2, and the PM. Should this restriction not be possible at the Glendora
(California) facility and complainant wishes to remain at the Glendora
facility, the agency shall assign S1, S2, and the PM out of the facility.
B. 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."
C. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall remove and expunge all references to any and
all disciplinary actions taken against complainant by the agency in
1995 from agency files, including all personnel files, wherever and
however maintained, and all files retained by supervisory personnel.
All such information shall be removed, also, from computerized systems
or databases maintained at any location by the agency.
D. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant pecuniary compensatory damages
in the amount of $12,926.19 and non-pecuniary compensatory damages in
the amount of $75,000.00, plus appropriate interest. Complainant shall
be entitled to additional pecuniary compensatory damages, where he can
demonstrate that additional interest has accrued on his debts as a result
of the agency's discriminatory actions.
E. Within sixty (60) calendar days of receipt of counsel's request
for reasonable attorney's fees and costs, the agency shall pay counsel
reasonable attorney's fees at the rate of $200.00, per hour, and the
agency shall pay $28.40, in costs.
F. If they are still employed by the agency, regardless of assignment,
the agency shall, within 180 days of the date this decision becomes final,
require S1, S2, and the PM to attend at least 16 hours of EEO-related
training.
G. 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, other benefits due appellant, and
evidence that all corrective action has been implemented. At the same
time, the agency shall transmit a copy of its report to complainant.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Glendora, California, 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.
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 (K0900)
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 (M0900)
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 (S0900)
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 (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
__05-31-01________________
Date
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., 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 privilege of
employment.
The United States Postal Service, Glendora, California, supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under the law.
It has remedied the employee affected by the Commission's finding of
retaliatory harassment by, inter alia, providing reinstatement, back pay,
compensatory damages, training for supervisory personnel, and attorney's
fees and costs. The United States Postal Service, Glendora, California,
will ensure that officials responsible for personnel decisions and terms
and conditions of employment will abide by the requirements of all federal
equal employment laws and will not subject employees to discrimination
in reprisal for EEO activity.
The United States Postal Service, Glendora, California, 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 participated in proceedings pursuant to, Federal equal employment
opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.
1All events occurred in 1995, unless otherwise stated.
2We note that the agency counsel responsible for this case was not
present at the hearing on compensatory damages and that the agency was
represented by counsel unfamiliar with this matter. Although not clear in
the record, the AJ concluded that the agency had been properly notified of
the hearing, and she proceeded with it. The agency has never offered any
rebuttal or otherwise disputed the monetary claims made by complainant,
and the FAD, having rejected the AJ's holding, did not address relief.
The agency did not submit comments in response to complainant's appeal.
3In her Order issued after the September 1998 hearing, the AJ also
clarified and expanded on her award of back pay to include, inter alia,
all leave and overtime that complainant would have accumulated but for
the agency's discriminatory retaliation. In addition, she awarded $28.40
in costs and attorney's fees at the rate of $200.00 per hour.
4Gross back pay calculations should include all forms of compensation such
as wages, bonuses, accrued leave, and all other elements of reimbursement,
and fringe benefits, such as pension and health benefits. Harrington
v. Tennessee Valley Authority, EEOC Petition No. 04920010 (December
10, 1993). With regard to calculation of TSP benefits, complainant is
referred to 5 C.F.R. � 1605.4(a)(3). See Malek v. Department of Health
and Human Services, EEOC Petition No 04990009 (August 19, 1999).
5Conversely, if evidence overwhelmingly establishes that a complainant
can never return to work under any circumstances, the Commission cannot
award front pay in lieu of reinstatement. See Stoll v. USPS, EEOC Appeal
No. 01944793 (March 18, 1996).