Should Howard blame the leave denial on a union steward, who leveraged his leave request on a threat of legal action for four other federal employees who were denied leave?
The threat by a union steward worked on a supervisor, but was later denied by management.
Howard K. Gross, )
Complainant, )
v. ) Appeal No. 01980733
) Agency No. 4D-200-1361-95
) Hearing No. 120-96-5670X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 1, 1997, complainant appealed the final agency decision dated
October 2, 1997, which concluded that 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.<1> In his complaint, complainant
alleged discrimination in reprisal for prior EEO activity when on July 28,
1995, he was issued a Notice of Removal for improper conduct/failure to
follow instructions.
The record indicates that at the time this matter arose, complainant was
employed by the agency as a City Carrier, PS-5, at the Potomac Branch,
Rockville Post Office, Rockville, Maryland. The record indicates
that on June 24, 1995, complainant submitted a PS Form 3971 requesting
annual leave to care for a sick family member for the period of July
10, 1995 through July 13, 1995. The request was initially approved by
complainant’s first line supervisor on July 3, 1995, but, subsequently,
disapproved by the Manager, EAS-19, Potomac Branch, Rockville Post Office.
In a sworn affidavit, the Manager stated that he disapproved complainant’s
leave request, even though it had previously been approved by his first
line supervisor because a Union steward had informed him that four other
carriers had requested leave but were denied and that if complainant’s
request was approved, grievances would be filed on behalf of these
four carriers. Accordingly, stated the Manager, he had to disapprove
complainant’s request in order to comply with the bargaining unit
contract. The Manager stated that he did not know the four carriers’
names nor did he keep their disapproved PS Form 3971 more than one pay
period. The agency’s Employee & Labor Relations Manual provided that PS
Form 3971 should be retained by the agency for two years from the date the
leave was taken or disapproved. The Manager indicated that on July 6,
1995, he informed complainant of his disapproval of the leave request.
When complainant did not report for work during the period July 10
through 13, 1995, he was charged 32 hours of Absence Without Leave
(AWOL) and on July 28, 1995, he was given the subject Notice of Removal.
The record indicates that the subject removal was subsequently reduced
to a “14-day paper suspension” at step 2 of the grievance procedure.
The Manager indicated that he never disapproved an employee’s request for
leave after it had been granted by the first line supervisor, except in
the incident at issue. The Manager stated that he knew of complainant’s
prior EEO activity during the relevant time period.
The record indicates that complainant filed a formal complaint dated
January 2, 1996, alleging that he was discriminated against as referenced
above. The agency accepted the complaint and conducted an investigation.
At the conclusion of the investigation, complainant requested an
administrative hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ).
On July 30, 1997, the AJ issued a recommended decision without a hearing
finding that complainant had been discriminated against in reprisal
for his prior EEO activity when he was issued the Notice of Removal.
After the agency consistently failed to adhere to the AJ’s orders or
respond to complainant’s discovery requests without good cause, the AJ
drew an adverse inference that: the requested information, if provided,
would have revealed that no carriers had requested and been denied leave
during the prime vacation period; the agency would be precluded from
offering any evidence relating to other carriers requesting or being
denied leave during the prime vacation period; and the agency would
be precluded from calling any witnesses at the hearing. Based on the
Manager’s failure to identify the four carriers he claimed requested but
were denied leave or to provide their disapproved PS Form 3971 required
to be kept by the Union contract as well as the agency’s failure,
without good cause, to comply with the AJ’s orders and the resultant
adverse inference, the AJ concluded that the agency failed to articulate
a legitimate nondiscriminatory reason for issuing complainant the Notice
of Removal. A hearing was held concerning only the issue of remedy.
With regard to complainant’s request for compensatory damages, the AJ
noted that although he requested past pecuniary damages for reimbursement
of costs associated with prosecuting his complaint in the amount of
$1,000, he presented no receipts for any such expenses except for $10.77
mailing costs. The AJ further noted that a review of the investigative
file indicated that complainant had incurred additional expenses such as
telephone calls, faxing, traveling to and parking at the hearing while he
did not provide receipts for such expenses. Accordingly, the AJ awarded
complainant $50.00 for out-of-pocket expenses in processing his complaint.
With regard to complainant’s request for nonpecuniary damages, the
AJ, based on complainant’s testimony, found that complainant suffered
emotional distress as a result of the Notice of Removal. The AJ, however,
noted that the amount of nonpecuniary damages was impacted by the facts
that: complainant presented no medical or expert evidence concerning his
mental and emotional distress; he did not seek medical assistance, rather
he continued to work without using any sick leave; he was actually never
removed from his position as a result of the Notice of Removal but rather
continued to serve in his position without interruption; he received many
notices of removal, other than the one at issue, before and after the
incident; and although he claimed that he was embarrassed by the incident,
he spoke with the editor of the Federal Times who published a story about
his termination in the newspaper. Based on the above factors, as well
as considering jury and court awards in cases in which the harm to the
plaintiff was similar in nature and severity to that of complainant,
the AJ awarded complainant $750 for nonpecuniary compensatory damages.
In a final decision dated October 2, 1997, the agency rejected the
findings and conclusions of the AJ, and entered a finding of no
discrimination. It is from this decision that complainant now appeals.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ’s
recommended decision sets forth the relevant facts and properly analyzes
the appropriate regulations, policies and laws. The Commission notes that
the AJ acted within his discretion and drew the proper adverse inference
under the circumstances, pursuant to 64 Fed. Reg. 37,644, 37,657 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. §1614.109(f)(3)).
See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). 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 and award of compensatory
damages.<2>
Accordingly, it is the decision of the Commission to REVERSE the agency’s
final decision which rejected the AJ’s finding of discrimination.
In order to remedy complainant for its discriminatory actions, the agency
shall, comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) In accordance with the AJ’s recommended decision, the agency shall
immediately rescind all disciplinary action occurring as a result of
the denial of complainant’s June 24, 1995 leave request for the period
July 10 through 13, 1995, including but not limited to the July 28,
1995 Notice of Removal; the 14-day suspension; and the 32 hours of AWOL,
and expunge all references thereto from complainant’s employment record.
The agency shall immediately give complainant back pay, with interest,
as well as any other benefits of employment that he would have received
but for the discrimination.
(2) With regard to compensatory damages, the agency, in accordance with
the AJ’s recommended decision, shall immediately pay complainant $800.
(3) Training shall be provided to the agency official responsible for
the agency’s action at issue on the obligations and duties imposed by
Title VII.
(4) The agency shall post at its Potomac Branch, the Rockville Post
Office, Rockville, Maryland, 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 referenced in the
statement entitled “Implementation of the Commission’s Decision,” within
ten (10) calendar days of the expiration of the posting period.
(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 verifying
that the foregoing corrective actions have been implemented.
ATTORNEY’S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. §1614.409).
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. §1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
(“Right to File A Civil Action”).
FOR THE COMMISSION:
November 19, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
_________________________
__________________________
1On 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. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission’s website at WWW.EEOC.GOV.
2On appeal, complainant asserts that the amounts of compensatory damages
awarded by the AJ were fair and reasonable.
