01a00284
03-29-2000
Alethea G. Harris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.
Alethea G. Harris, )
Complainant, )
) Appeal No. 01A00284
v. ) Agency No. 1H-352-0007-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that she was discriminated against on the basis of
race (African-American) when, on March 13, 1998, she was not selected
for the Complaints and Inquiry Clerk position, PS-06.
The record reveals that during the relevant time, complainant was
employed as a Automated Mark Up Clerk, PS-4, at the CFS Unit, Birmingham,
Alabama facility. The record reveals that on January 13, 1998, a vacancy
announcement for the subject position was announced. According to the
agency, complainant and six other individuals (three African-American
and three Caucasian) were found to be Best Qualified for the position,
and presented to the selecting official for interview and selection.
By letter dated March 13, 1998, complainant was notified that another
candidate (Caucasian) was selected for the position.
As reason, the Selecting Official testified in his affidavit that
complainant was not selected for the position because complainant's
score fell short of the highest score. The Selecting Official added
that complainant's score was lower because some of the answers she gave
during her interview were not satisfactory.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 3, 1998.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing before an AJ, but later withdrew her
request. Thereafter, the agency issued a final decision finding no
discrimination.
In its FAD, the agency found that complainant had not proven that the
agency's reason for its action was pretext for discrimination. The agency
also found that even if complainant had proven that the selection process
was tainted by discrimination, the record revealed that complainant
would not have been selected for the position absent the discrimination.
On appeal, complainant contends she was not interviewed for the subject
position. Rather, the selecting official applied her interview results
from an interview she supplied in response to a vacancy announcement
for a Complaints and Inquiry Clerk position three months prior.
Complainant also argued that she was more qualified for the position than
the selectee. In fact, complainant argued that the selectee had not yet
qualified on word processing software, the successful completion of which
was a requirement of the position. Most significantly, complainant
argued that the agency did not select the individual with the highest
score, as it claimed. Rather, another candidate (African American)
had the highest score.
The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973), we find that contrary to the agency's conclusion,
complainant has established by a preponderance of the evidence, that
the agency's reasons for its actions are pretext for discrimination.
Although the selecting official testified complainant was not selected
due to the fact that her score did not measure up to the highest score,
we agree with complainant's contention that this reason is not credible.
The agency's comparative index and supporting exhibits reveal that
the applicant with the highest score (77.5) was an African American,
and not selected for the position. Rather, the selecting official chose
the candidate with second highest score (67.5). The selecting official,
in his affidavit, does not offer any explanation for this.
Also noteworthy to our finding is the manner in which the interview
process was conducted. Specifically, the record reveals that a vacancy
announcement for a Complaint & Inquiry Clerk was announced approximately
three months before the instant vacancy announcement. Complainant and
an unknown number of individuals applied and were interviewed for
the position. The selectee for the position was a Caucasian female.
When the vacancy announcement for the subject case was announced, the
selecting official determined that neither complainant, nor the two other
African American applicants who had also applied for the prior vacancy,
needed to interview for the position.<2> Rather, he indicated on their
rating sheets that they had �interviewed previously.�
The agency failed to supply any documentation explaining the method by
which they were to conduct the selection process. In light of this, we
are unable to determine whether the agency's interview process violated
the selection process. However, despite this, we find that the agency's
failure to interview all candidates, including complainant who allegedly
did not interview well the first time, highly suspect.
The record also reveals that complainant served a detail in the subject
position, whereas the selectee had not. Evidence in the record also
reveals that the selectee had not qualified on certain word processing
software, which was a requirement before she was to be placed into
the position. The selectee's application itself also serves as
persuasive evidence that she was not the most qualified for the position.
Specifically, although the position was for a clerk and required typing
skills, the selectee's application is littered with typographical and
grammatical errors.
For these reasons, we find the agency's reason for its action was
not credible. Accordingly, we find that complainant established, by
a preponderance of the evidence, that she was discriminated against,
as alleged.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's final
decision and REMAND this case to the agency to take remedial actions in
accordance with this decision and ORDER below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
Within thirty (30) days from the date this decision becomes final,
the agency shall retroactively promote complainant to the Complaints
and Inquiry Clerk, PS-6, position, or a substantially similar position.
Complainant shall also be awarded back pay, seniority and other employee
benefits from the date of the effective promotion.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The 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 complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The 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."
The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a causal relationship between
the nonselection and any pecuniary or non-pecuniary losses. See West
v. Gibson, 119 S. Ct. 1906 (1999); Cobey Turner v. Department of the
Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998). The
complainant shall cooperate in the agency's efforts to compute the amount
of compensatory damages, and shall provide all relevant information
requested by the agency. The agency shall issue a final decision on the
issue of compensatory damages. 64 Fed. Reg 37,644, 37,657-58 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.110 (1999).
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
The agency is directed to conduct training for the Manager, Consumer
Affairs who was found to have discriminated against complainant
when he did not select her. The agency shall address this employee's
responsibility with respect to eliminating discrimination in the workplace
and all other supervisory and managerial responsibilities under equal
employment opportunity law.
The agency shall pay complainant's reasonable attorney's fees and costs.
The agency shall post a notice in accordance with the paragraph below.
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its CFS Unit, Birmingham, Alabama
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 (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 (M0300)
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); 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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 (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:
March 29, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On 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.
2The two other African-Americans who did not need to interview for the
subject position ranked first and third.