Bobby M. Brawley v. United States Postal Service 01972255 November 5, 1998 Bobby M. Brawley, ) Appellant, ) Appeal No. 01972255 ) Agency No. 4D-280-1092-95 v. ) Hearing No. 140-95-8161X ) William J. Henderson, ) Postmaster General, ) United States Postal Service, ) Agency. ) ) DECISION On January 13, 1997, Bobby M. Brawley (hereinafter referred to as appellant) initiated an appeal to the Equal Employment Opportunity Commission (Commission) from a final decision of the United States Postal Service (agency) concerning his complaint of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. The final agency decision was dated December 17, 1996, and was received by appellant's attorney on December 20, 1996. Accordingly, the appeal is timely, and is accepted by this Commission in accordance with the provisions of EEOC Order No. 960, as amended. The issue on appeal is whether appellant proved, by a preponderance of the evidence, that he was discriminated against on the basis of his race (black) when he was terminated from employment in January 1995. The record reveals that appellant was hired as a Part-time Flexible City Carrier in November 1994, and was subject to a 90-day probationary period. Appellant acknowledged that his supervisor had several discussions with him regarding his failure to deliver his route in a timely manner. On January 5, 1995, appellant was involved in a motor vehicle accident while delivering his route. Specifically, after returning to his vehicle which was parked in a customer's driveway, appellant accelerated too quickly and ran into a tree.<1> After a brief conversation with the owner, appellant continued delivering his route. Appellant did not immediately report the accident, although he acknowledged being aware of agency regulations requiring him to do so. Police officers soon approached appellant and questioned him regarding the accident, but did not issue him a citation. Appellant returned to the facility after completing his route, but did not notify his supervisor or the postmaster of the accident. Upon his return to work the next day, appellant was notified that he was being terminated for failure to meet the requirements of his position. Believing the termination to be discriminatory based upon his race (black), appellant filed a formal EEO complaint on April 11, 1995.<2> Appellant denied receiving a 30-day evaluation of his performance. Further, appellant stated that he did not telephone his supervisor to report the accident because one of the police officers indicated that she would contact the agency. Appellant stated that he was unable to locate his supervisor or the postmaster upon his return to the facility. Appellant cited another employee (Comparative; white) who had an accident during her probationary period and was not terminated. The Comparative testified that she hit a pole while turning into a parking lot, scratching an agency vehicle. The Comparative did not immediately report the accident, but waited until she returned from her route to do so. The Comparative stated that she did not receive any unsatisfactory ratings during her probationary period and was retained after that time. The postmaster stated that, although appellant's performance was unsatisfactory, he was terminated primarily because of the motor vehicle accident, which he failed to report. The postmaster stated that, unlike appellant, the Comparative was not at fault. In addition, the postmaster estimated that the damage to appellant's vehicle was far greater than that sustained by the vehicle driven by the Comparative. The agency complied with all procedural and regulatory prerequisites, and on October 30, 1996, an EEOC Administrative Judge (AJ) issued a recommended decision finding that appellant had been subjected to race discrimination. Thereafter, the agency issued a final decision dated December 17, 1996, rejecting the AJ's recommended decision. It is from this decision that appellant now appeals. After a careful review of the record, the Commission finds that the AJ correctly determined that appellant was subjected to race discrimination when he was terminated from his Carrier position. The Commission notes that while the agency disputes the AJ's finding that appellant established a prima facie case based upon the different treatment received by the Comparative, appellant needed only to present evidence which, if unrebutted, would support an inference that the agency's actions resulted from discrimination. See O'Connor v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996). Further, the Commission finds the AJ's ultimate finding of discrimination to have been reasonable, given the cited inconsistencies in the postmaster's testimony. As noted by the AJ, both appellant and the Comparative were involved in motor vehicle accidents, which they did not immediately report, during their probationary periods. While the postmaster initially asserted that the Comparative reported her accident when she was first able to use a telephone, approximately 15 minutes after the incident, he later acknowledged that she did not do so until she returned to the facility, and ultimately testified that he was not certain when the accident was actually reported. In addition, like the AJ, the Commission finds the postmaster's explanation that children playing on pieces of a fence damaged the Comparative's vehicle to be questionable, especially given the Comparative's testimony that the accident was caused when she hit a pole. The Commission recognizes that there was some indication that appellant's performance during probation was not as good as that of the Comparative. Nevertheless, given the postmaster's assertion that appellant's termination was primarily based upon the unreported accident, we find that the AJ properly concluded that the articulated reasons for the action were a pretext for race discrimination. Accordingly, the final agency decision is hereby REVERSED, and the Commission finds that appellant was subjected to race discrimination when he was terminated from his Part-time Flexible City Carrier position. ORDER The agency is ORDERED to take the following remedial actions: 1. The agency shall, within thirty (30) calendar days of the date this decision becomes final, reinstate appellant to the position of Part-time Flexible City Carrier, PS-5, or a comparable position effective January 6, 1995. 2. The agency shall determine the appropriate amount of backpay, with interest, and other benefits due appellant, pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The appellant shall cooperate in the agency's efforts to compute the amount of backpay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of backpay and/or benefits, the agency shall issue a check to the appellant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The appellant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The agency shall conduct a supplemental investigation to determine whether appellant is entitled to compensatory damages. During the investigation, the agency shall allow appellant to present evidence in support of his claim for damages.<3> Thereafter, the agency shall issue a final decision as to appellant's compensatory damages claim. Appellant shall cooperate with the agency. The supplemental investigation and issuance of the final decision must be completed within sixty (60) calendar days of the date this decision becomes final. 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 the General Mail Facility, Concord, North Carolina, 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 THAT 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. §l6l4.604(c). RIGHT TO FILE A CIVIL ACTION (R0993) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such 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: NOV 25, 1998 DATE Ronnie Blumenthal, Director Office of Federal Operations 1While appellant testified at the hearing that he hit a hedge near the driveway, a police report indicates that appellant hit a tree. 2It is noted that, as relief, appellant stated, inter alia, that he was seeking compensation for mental anguish. 3The Commission's decision in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), describes in detail the type of evidence which should be presented in support of a claim for compensatory damages.