Maria Johnson v. United States Postal Service
01A31924
September 17, 2004
.



Maria Johnson,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01A31924

Agency No. 1-H-331-0033-00

Hearing No. 150-A1-8232X

DECISION

Complainant filed a timely appeal with this Commission from the agency's
final order concerning her complaint of unlawful 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.  The Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.  For the following reasons,
the Commission AFFIRMS the agency's final order.


During the relevant time period, complainant was a letter carrier at the
agency's Blue Lagoon Carrier Annex, in Miami, Florida.  Believing that she
was discriminated against on the basis of national origin, complainant
contacted the EEO office.   Informal efforts to resolve complainant's
concerns were unsuccessful.  On May 12, 2000, complainant filed a
formal complaint claiming she was the victim of unlawful employment
discrimination on the basis of national origin when  on November 23,
1999, she was denied light duty.

Thereafter, complainant requested a hearing before an EEOC Administrative
Judge (AJ).  The agency submitted documents to the AJ stating that
complainant "never pursued this case to the formal stages."  As a result,
on May 30, 2001, the AJ dismissed the complaint for lack of jurisdiction.
On June 21, 2001, however, complainant submitted a copy of her complaint
to the AJ, date-stamped as received by the agency on May 12, 2000.
Consequently, the AJ informed the agency that the formal complaint was
improperly dismissed, and   requested the complaint file for further
processing.

On March 28, 2002, the AJ issued an Order,  again requesting the complaint
file from the agency. The AJ gave the agency until April 17, 2002 to
provide the file.  Instead of submitting the investigative file, the
agency filed a Response to Order and Request for Extension.  Therein,
the agency indicated that the complaint had not been investigated and
that an additional thirty days was needed to do so.  The AJ granted
the agency's request, and stated that the investigative file was to be
submitted by May 31, 2002.  The AJ also advised the  agency that failure
to provide the ordered file would result in sanctions, including the
issuance of a default judgment.

The agency did not provide the investigative file by the extended
deadline. Complainant filed a Motion for Sanctions.  In response, the
AJ issued the parties an Order to Show Cause Why Sanctions Should Not
Be Imposed.  Finally, the investigative file was received by the AJ on
June 20, 2002.  On July 10, 2002, based on the agency's repeated refusal
to comply with the AJ's order, the AJ drew adverse inferences in favor
of complainant and entered a default judgment finding discrimination
when complainant was denied light duty on November 23, 1999.

Complainant requested relief totaling over $300,000 ($214,851 for loss
of past income, $38,743 for loss of future pension, $77,000 for loss of
deferred promotions, and $11,550 for loss of future benefits).  However,
the AJ found that complainant was not entitled to such damages because
of the limited scope of the claim that was accepted for investigation.
Regarding compensatory damages, the AJ stated that complainant failed
to submit any evidence showing that being denied light duty on November
23, 1999, resulted in any compensable harm, other than loss of pay.
Regarding complainant's request for $100,000 in attorney's  fees, the
AJ noted that complainant submitted her designation of representation
some days after the Default Judgment was entered.  The AJ also found the
attorney's notice of appearance to be disingenuous and lacking in details.
Consequently, the AJ awarded no attorney's fees or costs

The agency was ordered to pay complainant back pay, with interest and
all other applicable benefits, that complainant would have received if
she had been provided with a light duty assignment on November 23, 1999.
Additionally, AJ ordered the agency to post a notice at the Miami facility
for sixty days.

On January 29, 2003, the agency issued a final action implementing the
AJ's decision and remedy.  Complainant filed the instant appeal.

The Commission's regulations afford broad authority for the conduct of
hearings by Administrative Judges. 29 C.F.R. 1614.109 et seq.; Rountree
v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001).
When a complainant or agency fails to comply with an AJ's order,
an AJ may take action against the noncomplying party pursuant to 29
C.F.R. 1614.109(f)(3), up to and including issuing a decision in favor of
the opposing party. See 29 C.F.R. 1614.109(f)(3)(iv).  Before sanctions
are imposed, the Commission requires the AJ to issue an order to the
offending party that makes clear that sanctions may be imposed and
the type of sanction that could be imposed for failure to comply with
an order unless the party can show good cause for that failure. See
Rountree, supra.  A showing that the noncomplying party acted in bad
faith is not required. See Cornell v. Department of Veterans Affairs,
EEOC Appeal No. 01974476 (November 24, 1998).  Furthermore, sanctions
must be tailored in each case to appropriately address the underlying
conduct of the party being sanctioned. See Hale v. Department of Justice,
EEOC Appeal No. 01A03341 (December 8, 2000). A sanction may be used to
deter the noncomplying party from similar conduct in the future, as well
as to equitably remedy the opposing party. Id. If a lesser sanction would
suffice to deter the conduct and to equitably remedy the opposing party,
an AJ may be abusing her discretion in imposing a harsher sanction. See
Pacheco v. United States Postal Service, EEOC Appeal No. 01970691
(November 25, 1998) (upholding Administrative Judge's issuance of
decision in complainant's favor as a sanction against the agency, the
Administrative Judge found that agency "acted deliberately in refusing to
provide complainant with relevant evidence in order to prove her claims,
in failing to state pertinent objections, in not filing timely motions,
and, most importantly, in refusing to comply with" discovery orders).

In the instant case, the parties do not contest the AJ's adverse
inferences and finding of discrimination.  As noted above, the agency's
final order implemented the AJ's decision and remedy.  Therefore, the
Commission  addresses solely the issue of complainant's entitlement
to relief.

The Commission finds that the AJ's decision on relief was appropriate.
The relief sought by complainant  exceeds the harm resulting from the
November 23, 1999 discriminatory event.  For example, in her request for
damages, complainant seeks back pay for work purportedly denied from
"1995 to 1998 and from August to November 2000."  Complainant  also
claims that she has been denied promotions, which in turn,  had an impact
upon her retirement benefits.  Complainant states that the agency's
refusal to allow her to work caused her to sell her home at a loss
and file bankruptcy.  The complainant's request describes purported
harms and losses that are unrelated to the agency's failure to give
her light duty on November 23, 1999.  The Commission agrees with the
AJ that complainant is entitled to back pay, calculated as the amount
she would have earned if she was given light duty on November 23, 1999,
minus the amount she actually earned.

Regarding attorney's  fees, the record indicates that complainant's
new attorney informed the AJ of his representation on July 24, 2002,
days after the default judgment was entered.  Moreover, as noted
by the AJ, the attorney claims that "[f]or the past four years, our
office has represented [complainant] in an advisory capacity concerning
the above-styled claim;” however,  the alleged incident only occurred
less than three years earlier. With respect to the amount of fees, the
attorney requests "$100,000.00" with a description that simply states
"attorney's fees," absent any details.  The attorney failed to describe
an hourly rate, the hours work, description of the work, or information
regarding the reasonableness of the fee.  Therefore, we find that the
AJ's decision not to award costs or attorney's  fees was proper.

Accordingly, the agency's final order, adopting the AJ's default judgment,
award of back pay, and posting order, was proper and is  AFFIRMED.
To the extent the agency may not yet have fully complied with the AJ's
Order, we are reiterating it herein.


ORDER

The parties are ordered to take the following remedial action:

1.   The Agency shall calculate and pay to the Complainant the appropriate
amount of back pay, with interest and all other applicable benefits,
that she would have received had she been provided with a light duty
assignment on November 23, 1999.  Back pay shall be calculated as the
amount the Complainant would have earned had she been provided with
a light duty assignment on the date of incident, minus the amount the
Complainant actually earned during that period.

2.   The Complainant shall cooperate with the Agency by provided all
appropriate relevant documentation necessary to calculate back pay and
all other benefits.

3.   The Agency shall post at the United States Post Office, Miami,
Florida P&DC, copies of the attached notice.  Copies of the Notice,
after being signed by the Agency director, shall be posted at the
Agency immediately upon receipt and be maintained by the Agency for
sixty consecutive days in a conspicuous place, including all places where
notices to employees and applicants for employment are customarily posted.
The Agency shall take reasonable steps to ensure that it will not be
altered, defaced, or covered.

POSTING ORDER (G0900)

The agency is ordered to post at its Miami Processing and Distribution
Center  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.


IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 (M0701)

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

September 17, 2004
__________________
Date