SANDRA M. LE BLANC, APPELLANT, v. WILLIAM J. HENDERSON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY. Appeal No. 01981419 Agency No. 4E-852-1014-95 Hearing No. 350-95-8342X May 5, 1999 DECISION Appellant filed the instant appeal from the agency's final decision dated November 7, 1997 dismissing a portion of appellant's complaint and, regarding the remainder of the complaint, finding that appellant was not discriminated against on the basis of retaliation. On August 15, 1997, an EEOC Administrative Judge issued a bench decision concerning the following issues all based on retaliation for prior EEO activity: 1. Appellant was constructively discharged. 2. Appellant was harassed by being assigned to work a disproportionate number of Sundays. 3. Appellant was harassed and threatened when she requested sick leave. 4. Appellant was bumped down on the seniority list. 5. Appellant was not selected for window training and subsequent assignment as a window clerk. 6. Appellant was subject to harassment. The administrative judge recommended that the agency dismiss allegation 1 for untimely EEO Counselor contact. The administrative judge, after imposing sanctions against the agency, found that the agency discriminated against appellant in allegation 2. The administrative judge found that appellant was not discriminated against in allegations 3, 4, and 5. Regarding allegation 6, the administrative judge found that apart from the working on Sundays issue in allegation 2, appellant did not state an independent claim of harassment in the following incidents: required to come to work in a snowstorm; required to come to work after a medical appointment; and the sick absence incident in September 1994. Prior to the August 15, 1997 decision the administrative judge issued an Order dated January 23, 1996 in which she dismissed the following issue for failing to state a claim: 7. Discrimination based on appellant's naval reservist status. In the agency's November 7, 1997 decision the agency: dismissed allegation 1 for untimely EEO Counselor contact; rejected the administrative judge's recommended decision regarding allegation 2 by dismissing allegation 2 for failing to state a claim and by finding that appellant was not discriminated against on the basis of retaliation in allegation 2; effectively adopted the administrative judge's recommended decision finding no discrimination for allegations 3 - 6; and dismissed allegation 7 for failing to state a claim and for untimely EEO Counselor contact. As an initial matter, we reject appellant's argument that the agency failed to issue the final decision in a timely manner. If an agency does not issue a decision within 60 days of receipt of the administrative judge's findings and conclusions, then the findings and conclusions of the administrative judge (and the relief ordered) become the final decision of the agency. 29 C.F.R. § 1614.109(g). The findings and conclusions were issued from the bench by the administrative judge on August 15, 1997. The only evidence in the record indicating when the agency received the transcript of the bench decision and the transcript of the hearing are the date stamps on both transcripts indicating that the agency received the transcripts on September 12, 1997. The agency's final decision is dated November 7, 1997, which is less than 60 days after September 12, 1997. Therefore, we find that the agency's final decision dated November 7, 1997 is the agency's final decision in the instant matter. Allegations 1 and 7 The Commission finds that the agency properly dismissed allegations 1 and 7 for untimely EEO Counselor contact pursuant to 29 C.F.R. §1614.107(b). Regarding allegation 7, we note that appellant has not challenged the agency's finding that appellant resigned from active drill status with the naval reserve effective July 17, 1994. The Commission therefore finds that appellant should have reasonably suspected discrimination regarding allegation 7 by, at the latest, July 17, 1994, which was more than 45 days prior to her initial contact of an EEO Counselor regarding allegation 7. Appellant has not shown that any discriminatory incident in allegation 7 occurred 45 days or less prior to her raising this matter with an EEO Counselor. Because of our disposition of allegation 7 we do not address whether the agency also properly dismissed allegation 7 for failing to state a claim. Allegations 3 - 6 The Commission has reviewed the record, including appellant's brief on appeal, and we find that the administrative judge properly found that appellant was not discriminated against on the basis of retaliation in allegations 3 - 6. Regarding allegations 3, 4, and 5, the Commission agrees with the administrative judge that appellant failed to show that the agency's articulated reasons for its actions were a pretext for discrimination. Regarding allegation 6 we agree with the administrative judge that, apart from the incident at issue in allegation 2 (which is being addressed separately in this decision), the incidents cited by appellant do not rise to the level of a hostile work environment and are separate from the incident in allegation 2. Therefore, we adopt the administrative judge's findings and conclusions with regard to allegations 3 - 6 and we find that the agency properly found no discrimination in allegations 3 - 6. Allegation 2 As an initial matter the agency found that this allegation should not have been considered by the administrative judge because allegation 2 was not counseled, was not raised in the complaint, and was not accepted for investigation as a separate issue. Testimony concerning allegation 2 was taken at the hearing. The agency did not object at the hearing to the testimony provided in response to questions from appellant's attorney and from the administrative judge regarding allegation 2. Furthermore, the agency itself elicited testimony from appellant regarding allegation 2. At no point in the hearing did the agency object to any testimony concerning allegation 2 on the grounds that allegation 2 was not at issue in the complaint. In the Agency's Closing Arguments, which were dated July 11, 1997, the agency argues the merits of allegation 2 but does not argue that allegation 2 was not at issue in the complaint. Only in the agency's decision does the agency, after receiving a recommended decision of discrimination in allegation 2, first assert that allegation 2 is not at issue in the complaint. The Commission finds that the agency has waited too long to raise this argument. The agency was clearly on notice during the hearing that allegation 2 was being considered as an issue by the administrative judge because the agency addressed the merits of allegation 2 in the Agency's Closing Arguments. If the agency had wanted to contest the inclusion of allegation 2, then the agency should have raised such an objection at the hearing and certainly should have raised such an objection in the written closing arguments rather than merely addressing the merits of allegation 2. The agency is now estopped from arguing that allegation 2 was improperly considered as an issue by the administrative judge. Furthermore, under the circumstances, we find that the administrative judge did not abuse her discretion in considering this allegation to be a part of the complaint. The agency found that appellant was not aggrieved in allegation 2. The Commission finds that appellant's allegation that she was discriminatorily forced to work on some Sundays when she did not want to work on those Sundays harmed a term, condition, and/or privilege of her employment and renders her an aggrieved employee. The administrative judge found that "[d]ue to adverse findings of fact occasioned by the Agency's refusal to produce an approved witness, the Complainant has established upon a preponderance of the evidence that the Agency's articulated reasons for assigning her to work Sundays were pretexts for retaliation."The administrative judge found that she had approved Witness A as a witness for appellant and had ordered the agency to produce Witness A to testify at the hearing. The agency informed the administrative judge that Witness A was no longer under control of the agency because Witness A was receiving payments from the Department of Labor, Office of Workers' Compensation Programs (OWCP). The administrative judge found that she then explained to the agency that if the agency continued to fail to produce the witness, appropriate sanctions as authorized by §1614.109(d)(3) could be imposed. At the hearing, the agency did not produce the witness. The administrative judge found that regardless of whether Witness A was employed by the agency (United States Postal Service), the agency is responsible for ensuring that the witness is made available to testify when the administrative judge so orders. The administrative judge found: The record is clear that the Agency unreasonably refused to even attempt to produce this witness. To permit the Agency to behave in this fashion with impunity would effectively usurp the authority of the Administrative Judge to control the conduct of the hearing. .... Thus, I find and conclude that sanctions are appropriate for the Agency's refusal to produce an approved witness for the hearing and that the Agency must be held responsible for the consequences of its refusal to follow the Administrative Judge's order. On appeal the agency argues that sanctions are not appropriate because: (1) Witness A was not an employee of the agency at the time of the administrative judge's approval of witnesses (Witness A was, according to the agency, a former employee); (2) Witness A was not an employee of another federal agency, but was instead a claimant with the OWCP; (3) there was no bad faith by the agency in not producing Witness A; (4) Witness A would not have provided testimony about anything that was not already available as "facts in the file"; (5) Witness A would not have been able to testify (lack of knowledge) about any of the accepted issues and activity which brought appellant to the EEO Office; and (6) appellant admitted that she volunteered to work the majority of Sundays. EEOC Regulation 29 C.F.R. §1614.109(d)(3) provides: When ... the agency ... fail[s] without good cause shown to respond fully and in timely fashion to requests for ... the attendance of witness(es), the administrative judge may, in appropriate circumstances: .... (ii) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party[.] The administrative judge ordered the agency to produce Witness A and the record fails to show, and the agency does not claim, that the agency made any attempt to secure the testimony of Witness A. Even if the agency had no authority to produce Witness A at the hearing, a matter we need not decide, the agency still could have attempted to produce Witness A by requesting Witness A's presence at the hearing. The administrative judge found, and the agency does not dispute, that the agency did not request that in lieu of live testimony: Witness A be allowed to testify by telephone; Witness A's testimony be taken in deposition; or Witness A's testimony be stipulated to by the parties. Simply put, the agency did not produce Witness A and does not claim that it took any reasonable steps to obtain testimony from Witness A. Therefore, we find that sanctions under §1614.109(d)(3) were properly imposed within the administrative judge's discretion because the agency failed to even attempt to produce Witness A despite the administrative judge's clear order. The administrative judge imposed sanctions pursuant to §1614.109(d)(3)(ii) because of the agency's failure to attempt to produce Witness A. The Commission finds that the particular sanctions chosen by the administrative judge were within her proper discretion. The Commission rejects the agency's argument that there was no need to impose sanctions. The Commission finds that Witness A's testimony was important corroboration of appellant's claim of discrimination. The agency's reliance on appellant's statement that she volunteered to work a majority of Sundays is really an argument that appellant has failed to prove discrimination and has no bearing on whether sanctions are appropriate. The Commission finds that the administrative judge acted within her proper discretion when she found that all admissible statements of fact contained in appellant's offer of proof (of Witness A's expected testimony) are established. The Commission finds that the administrative judge properly found that appellant was discriminated against on the basis of retaliation in allegation 2. The administrative judge found that evidence submitted by appellant in the form of her testimony failed to show that appellant was entitled to compensatory damages. Appellant has not claimed on appeal that she is entitled to compensatory damages. Nor is there any evidence in the record regarding compensatory damages apart from appellant's generalized statements about migraine headaches and gastrointestinal distress which were considered by the administrative judge. Therefore, we find that the administrative judge properly determined that appellant was not entitled to any compensatory damages for the discrimination in allegation 2. The administrative judge also properly found that appellant was not entitled to any injunctive relief in the instant matter because she was no longer employed by the agency. In summary regarding allegation 2, the Commission adopts the administrative judge's decision and finds that the agency violated Title VII by assigning appellant to work a disproportionate number of Sundays. CONCLUSION The agency's decision dismissing allegations 1 and 7 is AFFIRMED. The agency's decision finding no discrimination in allegations 3 - 6 is AFFIRMED. The agency's decision finding no discrimination on the basis of retaliation in allegation 2 is REVERSED. ORDER (D1092) The agency is ORDERED to take the following remedial action: The agency shall take corrective, curative, or preventative action to ensure that violations of the law similar to those found in this decision will not recur. The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G1092) The agency is ORDERED to post at its Sedona Main Post Office, Sedona, Arizona 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 (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(c) (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. § 1614.604(c). RIGHT TO FILE A CIVIL ACTION (T0993) This decision affirms the agency's final decision in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court on both that portion of your complaint which the Commission has affirmed AND that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 (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: Ronnie Blumenthal Director Office of Federal Operations