CARL PETERSEL, COMPLAINANT,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, (PACIFIC AREA) AGENCY.

Appeal No. 
0720060075
Agency No. 4F926004104
Hearing No. 340-A5-0471X

October 30, 2008

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the agency's Final Order and Appeal dated July 7, 2007, which rejects the EEOC Administrative Judge's (AJ) decision following a hearing concerning complainant's equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant alleged that the agency discriminated against him on the bases of race (Caucasian), national origin (non-Hispanic), and age (50) when on November 17, 2003, he was terminated from his position at the San Pedro Post Office, a Postal Service facility.

PROCEDURAL BACKGROUND

On January 12, 2006, a hearing was held and five witnesses testified, including complainant. On April 10, 2006, the AJ issued a decision finding discrimination and awarding complainant $10,000 in compensatory damages. The AJ also set forth a timeframe for complainant to file his Verified Petition for Attorney's Fees and Costs, as well as a response by the agency. [FN1] On June 28, 2006, the AJ issued her decision on attorney's fees and incorporated her previous decision. On July 7, 2006, the agency filed its Notice of Appeal and on July 27, 2006, it filed a brief in support of its notice of appeal.

FACTUAL BACKGROUND

On September 29, 2003, the agency hired complainant as a Part Time Flexible (PTF) carrier with the San Pedro Post Office. Complainant's supervisors (S1 and S2) were both Hispanic. A few days before completing his 90-day probation, S1 and S2 met with complainant and told him to quit or they would terminate him. S1 and S2 testified that they based their actions on Probationary Reports (PS Form 1750s) that they completed which indicated complainant was a poor performer. S1 and S2 based their decision, in part, on the Carrier-Auxiliary Control Forms (Form 3996s), which document the amount of time a carrier takes in performing his job duties to demonstrate that complainant exceeded the time allotted to deliver the mail on his assigned routes. At the hearing, S1 and S2 relied on the documented evidence (Form 1750 and Form 3996s) to show that complainant was a poor performer.

However, the EEO Investigative Report (IR) failed to include any comparative data on other PTF carriers. In addition, the IR is completely devoid of any Form 1750s or Form 3996s from other PTF carriers for the relevant time (i.e., November 2002 to November 2003.) There was no information in the IR about the comparative performance of employees who passed or failed probation during the relevant period. The only evidence contained in the IR was documentation produced by S1 and S2 on complainant's alleged poor performance. In addition, the record shows that the agency repeatedly refused to give complainant evidence on comparative employees that complainant requested during discovery. Moreover, despite a direct order by the AJ that demanded such comparative evidence be produced, the agency still did not produce such comparative evidence.

The record shows that evidence on comparative employees would have included: (1) Probationary Reports (Form 1750s) of PTF carriers at the San Pedro Post Office from November 2002 to November 2003; (2) Carrier Auxiliary Controls (Forms 3996s) of PTF carriers at the San Pedro Post Office from November 2002 to November 2003; (3) Form 50s, which would identify the initial entry date of a Postal Service employee and the employee's work location; and (4) Seniority Rosters, which would indicate the date on which an employee entered duty and passed or failed probation.

Despite the agency's continued failure to produce the relevant comparative evidence requested, the hearing produced testimony on this issue. A Postal Service employee (W1) testified that another Postal Service employee (C1) (Hispanic) was a probationary PTF carrier in 2003. Wl also testified that C1 was a poor performer who reported to S1 at the time and who nevertheless passed probation.

ADMINISTRATIVE JUDGE'S DECISION

The AJ found that the agency failed to conduct an adequate investigation and engaged in bad faith discovery practices. Moreover, the AJ found that the agency failed to comply in good faith with one of her pre-hearing orders which specifically required the agency to produce comparative evidence. [FN2] As a result of these failures, the AJ drew an adverse inference that the comparative evidence not produced by the agency would have shown that a similarly situated employee (i.e., C1) was treated more favorably (i.e., not forced to resign) despite poor performance during his probationary period. The AJ also concluded that S1's testimony on this issue was not credible and that W1's testimony was credible. In addition, the AJ found that since the relevant productivity records were not produced, the agency failed to show that complainant's productivity was lower than C1's productivity and to what extent. The AJ also noted that complainant presented evidence to show that the productivity level expected by S1 and S2 was not justified. Accordingly, the AJ concluded that the record supported a finding that complainant's employment was terminated by S1 and S2 because of his national origin. [FN3]

CONTENTIONS ON APPEAL

The agency asserts on appeal that the AJ's decision should be reversed because (1) the AJ's findings of bad faith are not supported by the evidence; (2) the AJ improperly shifted the burden of proof to the agency; (3) the evidence, that the AJ concluded should have been in the EEO Investigative File, did not exist; (4) even assuming that there was bad faith the sanctions are excessive; and (5) attorney's fees were awarded for periods prior to complainant's attorney's notice of appearance.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.

The Commission finds that the AJ properly drew an adverse inference against the agency in this case. Pursuant to 29 C.F.R. § 1614.109(f)(3), an AJ may sanction a party for failure to provide requested relevant information, to include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). The Commission has determined that delegating to its AJs the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy that will effectuate the policies of the Commission. See Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005). See also Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (August 9, 2006). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned, A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction. See Hale, supra.

Agencies have a duty to maintain pertinent evidence upon receiving notice that a complainant has initiated the EEO process. See 29 C.F.R. § 1602.14. Although the agency asserts that the destruction of relevant evidence was inadvertent, the Commission's regulations do not require a finding of willfulness or bad faith. See Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (August 9, 2006).

The AJ set forth in great detail the basis for applying an adverse inference. Specifically, as the AJ noted in her decision, it was only through the AJ's own questioning of a neutral witness at the hearing (almost two years after the complaint in this case was filed), that a younger Hispanic employee who was a probationary PTF at the relevant time was identified. Wl, a city letter carrier, shop steward, and On-the-job Instructor (OJI) in the San Pedro office, was asked whether he observed any Hispanic PTF's on probation in San Pedro in 2003. Wl identified one person, C1. Wl testified to working with C1 while C1 was still a PTF probationary employee. Wl also testified that S1 was C1's supervisor at the time. The AJ noted that at the hearing, S1 denied supervising C1 during his probationary period.

Moreover, had the agency's investigation been conducted properly under the minimal standards set by MD-110, and had the agency complied with the Commission's record keeping regulations, the IR would contain Form 3996's and 1750's for other probationary PTF employees at San Pedro during the period 2002 to 2004, or at least for one year prior to the filing of the complaint. Additionally, the record shows that seniority rosters indicate "the date the individual entered on duty with the Postal Service [as a probationary employee], and for those who passed, their pass date would be ninety (90) days after the seniority date."

The record also shows that complainant sought information related to other PTF's in discovery, and the agency failed to produce such information, despite its obvious relevance to the case, stating that the source of such information was seniority lists and that they had not been retained. As the AJ concluded in her decision, this was a false and incomplete answer, as the agency later admitted. Complainant asked for information which existed at the time, which contained at least partial responses to his discovery requests, and which could have been obtained, as demonstrated at the hearing. Yet the evidence in the record supports the finding that the basis for failing to produce the relevant information was simply because the agency failed to contact at least three management officials who were obvious sources of such information. Moreover, the agency produced no evidence that it conducted a good faith inquiry prior to providing false and incomplete discovery responses or even prior to December of 2005. Only then, after issuance of an order by the AJ to submit a declaration under penalty of perjury from a competent witness, the acting Postmaster (AP) stated that she had generated a list containing some of the information requested. [FN4] We agree with the AJ that had the agency counsel questioned such an obvious witness with potential knowledge much earlier than December of 2005, it would have received the information provided by AP at a time when the information was more complete or could have been made more complete. According to AP, some terminated employees might not have been reflected in the attachments to her declaration because hard copies of rosters were not generated and changes to the roster were made on an evolving basis when hiring and termination occurred.

We agree with the AJ that the agency's investigator also could have contacted the Postmaster at the facility in question in a timely manner but did not. Had the agency produced the PS Form 1750 (i.e., an evaluation report generated for every probationary employee) for PTF carriers at the San Pedro office, along with the 3996s, complainant may have been able to produce additional evidence of similarly situated employees. According to one agency witness (W2), all probationary PTF employees at the San Pedro office in 2003, would have had a completed Form 1750, yet the agency failed to produce any to complainant. In fact, on cross-examination, W2 testified that he could not recall if he was ever asked to look for Form 1750s for other PTFs who worked at San Pedro in 2003. Accordingly, we agree with the AJ's conclusion that the reason for the untrue and incomplete discovery responses of the agency, according to all the evidence on point, is that the agency counsel failed in 2004 and 2005, to make a good faith, reasonable inquiry of its client, with whom it has a continuing relationship, and certify the discovery response accordingly.

The record also supports the AJ's conclusion that the agency failed to act in good faith in response to her orders to supplement the record with the documents which could confirm W1's testimony, or otherwise show the existence and performance records for other probationary PTF's during the relevant time period. Although the San Pedro Postmaster was belatedly contacted after the AJ's first direct order to provide information, the agency initially alleged that it could not provide the information sought by her Order dated December 19, 2005, because the seniority rosters were unavailable. At hearing, however, the agency's counsel admitted that this was incorrect. The agency's only attempt to show "good cause" why sanctions should not be imposed was the agency counsel (A1)'s own testimony concerning purported documentation obtained from the manager of agency's "Shared Services" unit (Ml). Al stated that the agency's law department was "notified" on December 19, 2005, that certain personnel information could be obtained from the Shared Services Center which she had previously stated did not exist. There was, however, no explanation as to who provided the notification, to whom, and why.

Accordingly, we agree with the AJ's conclusion that Al was "notified" at that point in time because it was only at this time that the appropriate inquiry was made, and that the inquiry was made only in response to the AJ's second order to produce relevant information, show cause why it did not do so sooner, or be sanctioned. However, as the AJ noted the belated statement by Al did not show good cause, nor did it provide the appropriate evidence, because it failed to produce a declaration from M1 under penalty of perjury prior to the hearing, and failed to seek leave from the AJ for the late addition of M1's testimony at the hearing to lay the foundation for the admissibility of these documents. Instead, Al provided her own declaration purportedly "certifying" the validity of the documents, but in fact simply repeating the out-of-court, unsworn, untested statements of M1. [FN5] The AJ concluded that there was no excuse given for relying on "testimony" of counsel, who clearly could not testify of her own knowledge concerning the records. We agree with the AJ that the information the agency relies upon is inherently unreliable, and the agency offered no excuse for its choice not to present such evidence in a sworn, reliable form during investigation, in its responses to discovery, in response to the AJ's orders issued well before hearing, if not at hearing.

We further agree with the AJ's conclusion that M1's unsworn documentation is not sufficiently reliable and probative to support a conclusion that there were no employees comparable to complainant who passed probation under similar circumstances and were significantly younger and/or Hispanic. There was no authentication through a declaration under penalty of perjury nor was his testimony tested at the hearing by cross-examination. Moreover, the potential significance of this documentation to this case was neglected by the agency until the day of hearing and the agency failed to provide any explanation for its absence. Since the evidence is unreliable, it cannot support the agency's ultimate argument that, because M1 told Al in 2006, that no similarly situated comparatives existed, the agency obviously had no motive to conceal evidence of discrimination in 2004 and 2005. [FN6] We agree with the AJ that it would have been fundamentally unfair to complainant had the AJ accepted the "testimony" of Al which admittedly had been untrue as to other discovery matters.

Accordingly, as a result of the AJ's own efforts to supplement the record before the hearing, she concluded that the agency does not understand its obligations under the Commission's rules, refuses to comply with the rules, or unjustifiably continues to defend its conduct in this case. The AJ noted that in spite of the obvious relevance of complainant's request for information about other PTFs in 2003, the agency's closing brief argued that an adverse inference should not be drawn based on its failure to retain and produce the documents containing the information because "management would not have realized the relevance of the seniority rosters to be on notice to preserve them, as complainant's case involved constructive discharge." The AJ concluded that such a position presents a direct conflict with the agency's position throughout the discovery process that it could not answer complainant's various requests because the information sought existed in seniority rosters which were unavailable at the time. The AJ further notes that the record shows that the agency was clearly on notice of the significance of the seniority rosters and other equally significant documentation concerning the performance of not only complainant, for whom the records were kept, but also for comparative employees, for whom the evidence was not produced. The AJ furthermore concluded that it is not a meaningless error when the agency's lawyer provides false discovery responses from the client whose business she represents on a daily basis. The AJ also found no evidence of any reason for the false discovery answers short of inexcusable neglect to make a proper inquiry prior to making the discovery responses or even prior to December of 2005. The AJ also noted that the agency lawyer cannot and did not claim a lack of familiarity with her only client's records, nor has she shown that she was misled intentionally or unintentionally by false information from her client.

We find that the record supports the AJ's position regarding the agency's failure to produce relevant documents and testimonial evidence. Moreover, we agree with the AJ's conclusion that the agency's attempt to rectify its failure at the hearing was inadequate and unreliable. Thus, the AJ acted within her discretion in drawing an adverse inference against the agency regarding the lack of comparative data. [FN7]

Further, after a careful review of the record in its entirety, the Commission finds that the AJ set forth the relevant facts and properly analyzed the appropriate regulations, policies and laws. Based on the evidence of record, the Commission discerns no basis to disturb the AJ's finding of discrimination.

ATTORNEY'S FEES

By federal regulation, the agency is required to award attorney's fees for the successful processing of an EEO complaint that alleged discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. 29 C.F.R. § 1614,501(e)(1)(ii), To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). The attorney requesting the fee award has the burden of proving, by specific evidence, his or her entitlement to the requested amount of the attorney's fees and the costs in the matter. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983).

In her Decision on Attorney's Fees and Costs, the AJ concluded that complainant's attorney's purported hourly rate should be reduced from $350 to $300. The AJ notes in her decision that complainant's counsel (A2) has a similar number of years of experience in both general practice and specialized law as the attorney (A3) to whom she compares herself. Based on these similarities and A1's failure to provide evidence of an award of her requested rates by any court or administrative body, the AJ concluded that $300 per hour is a reasonable hourly rate. This rate was applied by the AJ with one exception for an hour of travel time that was reduced to half the otherwise appropriate rate of $300.

With respect to the number of hours reasonably expended by A2, the AJ noted that the contested hours (approximately 8 hours) spent after the filing of the complaint, but before filing a notice of representation, were reasonable to spend reviewing documents relevant to complainant's case and conducting research, as well as in assisting a non-lawyer representative. The AJ also found the number of hours (approximately 17 hours) spent from January 9-11, 2006, to prepare for the hearing to be reasonable. In addition, the AJ found 13 hours expended to prepare the closing brief to be a reasonable amount of time. The AJ also found one hour to review her decision reasonable. Lastly, the AJ concluded that the seven hours expended to draft the verified attorney's fee petition was a reasonable amount of time.

In total, the AJ concluded that 68 hours and 5 minutes were reasonably expended by A2. After taking into account the one hour for travel billed at half the hourly rate, the AJ awarded $20,275 in attorney's fees. In addition, the AJ concluded that complainant was entitled to $105.47 for copy and fax costs.

Accordingly, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to REVERSE the agency's final order because the Administrative Judge's ultimate finding that complainant's termination was discriminatory and the award of attorney's fees are supported by substantial evidence in the record. Since complainant's termination was discriminatory he is entitled to reinstatement and back pay. Accordingly, we MODIFY the AJ's award to include such remedies.

ORDER

The agency is ordered to take the following action within thirty (30) days of the date this decision becomes final:
(1) The agency shall offer complainant reinstatement to the Part Time Flexible (PTF) carrier position at issue herein, retroactive to November 17, 2003 (i.e., the date complainant was terminated). Such reinstatement should include all pay raises that would have likely occurred. The offer shall be made in writing. Complainant shall have 15 days from receipt of the offer to accept or decline the offer. Failure to accept the offer with 15 days will be considered a declination of the offer unless complainant can show that circumstances beyond his control prevented a response within the time limit.
(2) The agency shall determine the appropriate amount of back pay, with interest, and other benefits due complainant, including all salary increases, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Back pay shall be calculated retroactively to November 17, 2003. The agency shall provide a copy of these calculations to petitioner. Such calculations shall include a detailed statement clarifying how complainant's back pay award was reached. The statement shall consist of a clear and concise, "plain language" statement of the methods of calculations used for the instant matter and actual calculations applying said formulas and methods. 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 petitioner for the undisputed amount within thirty (30) calendar days of the date the agency determines the amount it believes to be due. 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."
(3) The agency shall take corrective, curative and preventive action to ensure that discrimination does not recur. This includes, but is not limited to, providing training to the relevant management officials (i.e., S1 and S2), regarding their responsibilities with respect to eliminating discrimination in the federal workplace. The training must place a special emphasis on the agency's obligations under Title VII;
(4) The agency shall pay complainant $10,000.00 in non-pecuniary compensatory damages; [FN8]
(5) The agency shall pay complainant attorney's fees and costs in the amount of $20,380.47;
(6) The agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the compliance officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management official has left the agency's employ, the agency shall furnish documentation of his departure date; and
(7) 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 corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its San Pedro Post Office in San Pedro, 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 (K0408)

Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0408)

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 (R0408)

This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0408)

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

FN1. The AJ noted that her decision was not final until her decision on attorney's fees and costs was issued.

FN2. The AJ advised the agency that drawing an adverse inference was one of the possible sanctions she could apply against the agency for failing to comply with her pre-hearing order and noted that unlike the traditional doctrine of spoliation, the applicable EEOC regulation does not require proof that the party intentionally destroyed evidence. Instead, the question is whether the party fails to produce the information "without good cause."

FN3. There was also testimony that a disproportionate number of PTFs were Hispanic.

FN4. The list apparently contained the names of some of PTFs who had passed probation since 2000, based on seniority rosters printed out and their race/national origin, based upon AP's memory

FN5. According to Al, no PTF clerks or carriers were hired in 2002. Moreover, Al stated that in 2003, complainant was allegedly the only person hired.

FN6. In her decision, the AJ noted that at the hearing, Al stated that M1 was "available for testimony by phone," but noted that the agency did not request leave to call the witness at the hearing or before the hearing, let alone in a timely manner by identifying his knowledge in the Pre-Hearing Report. Moreover, the AJ noted that the agency did not file a motion for leave to take testimony by phone instead of in person, nor did it explain why live testimony was not possible. The AJ concluded that given the history of agency delay and obfuscation in this case, she could not in fairness to complainant approve telephonic testimony of a key witness regarding documentation newly-produced for no apparent reason. The AJ concluded that complainant would be entitled to face-to-face cross-examination, and the trier of fact deserved an opportunity to examine and to observe the witness and the circumstances of his testimony on a crucial fact in this case, i.e., whether any appropriate comparatives could be identified and their work records examined for evidence of disparate productivity standards or other circumstantial evidence of discriminatory intent.

FN7. The Commission also finds that the agency's proffer of new evidence on appeal fails to meet the regulatory criteria of 29 C.F.R. § 1614.407(c)(1).

FN8. We note that the agency does not contest this portion of the AJ's award.