01a01295
10-20-2000
Annette G. Hill, Complainant, v. William S. Cohen, Secretary, Department of Defense, Army & Air Force Exchange Service, Agency.
Annette G. Hill v. Department of the Army
01A01295
10-20-00
.
Annette G. Hill,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
Army & Air Force Exchange Service,
Agency.
Appeal No. 01A01295
Agency No. 96-071
Hearing No. 110-96-8376X
DECISION
INTRODUCTION
Pursuant to 29 C.F.R.� 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.<1>
Complainant filed a complaint in which she claimed that the agency
discriminated against her on the bases of race (Black), age (60),
and reprisal (union activity) by not promoting her to the position of
senior accounting technician. The agency investigated the complaint and
referred the matter to an administrative judge (AJ), who recommended a
finding of no discrimination. The agency subsequently adopted the AJ's
recommendation as its final decision, from which complainant now appeals.
ISSUE PRESENTED
Whether, given that the Commission found in an earlier decision that
the agency discriminated against another black candidate for the senior
accounting technician position, complainant is entitled to relief.
BACKGROUND
In November 1995, the agency posted a vacancy announcement for the
position of senior accounting technician, grade 6. Duties of the position
included providing advice, guidance, and assistance to lower graded and
less experienced accounting technicians concerning input and verification
of financial documents, in addition to the full range of duties at grade
5. Investigative Report (IR) Tab I. Qualifications for the position
included a high school diploma, one year of general experience and two
years of specialized experience in accounting, processing documents, or
related clerical work. The supervisor had the discretion to determine
whether any other qualifications for the position were necessary.
Five accounting technicians, including complainant and the selectee,
applied for the position, and were found to be the best-qualified
candidates. They are identified as follows:
Candidate
Race
Age
Overall Rating
Experience
Awards
CP
Black
45
299.7
120
11
Selectee
White
41
280.4
114
5
SC
Black
62
267.9
75
8
VM
Black
43
248.1
69
3
Complainant
Black
60
244.0
72
2
IR, p. 5; Tabs H,I,P. The selecting official, who was the supervisor
for the branch, interviewed the candidates and chose the selectee on
December 11, 1995. The investigation revealed that the racial makeup
of the accounting technician work force was 62 % black and 38% white,
and that there were no black supervisors or team leaders. IR, p. 4;
Administrative Judge's Recommended Decision (AJRD), p. 6. Nevertheless,
on February 13, 1999, the AJ found that the agency had articulated
legitimate and nondiscriminatory reasons for choosing the selectee which
complainant failed to prove were pretexts for discrimination on any basis.
AJRD, pp. 13-18.
The Commission found this selection process to be discriminatory in
Counts v. Department of Defense - Army & Air Force Exchange Service,
EEOC Appeal No. 01971293 (September 7, 1999). In Counts, Candidate SC,
who had the third highest rating score, filed a complaint with respect to
her nonselection for the position. The selecting official's stated reason
for not choosing Candidate SC is that the selectee's application disclosed
more evidence of demonstrated leadership ability through supervisory
experience. The Commission found this reason to be a pretext for race
discrimination, and based its conclusion on several factors. First, we
found that four of the five top applicants for the position were black,
while the selectee was white. Second, we found that Candidate CP, who
is also black, scored higher than the selectee on the ranking factors
and had many more awards for outstanding service than the selectee.
Third, we found that all of the black applicants had substantially
more accounting experience than the selectee, and as a result, the
selectee had to ask them questions even after she had been chosen.
Fourth, we found that the selectee had to be given extensive training
after she had been selected, in order to equip her with the knowledge
that she needed to provide guidance to the other technicians. We found
it clear from the record that the selectee was not the best candidate,
and was not capable of providing guidance to the extent that the other
candidates were. As relief, we ordered the agency to retroactively
promote Candidate SC into the position or credit her service record,
whichever was appropriate under the circumstances.
ANALYSIS AND FINDINGS
At the outset, we take notice of our decision in Counts, that, in choosing
the selectee for the position of senior accounting technician in December
1995, the selecting official was motivated by unlawful considerations
of race, in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e, et. seq. See Snead v. Pension Benefit
Guaranty Corporation, EEOC Request No. 05990239 (March 25, 1999); Wood
v. United States Postal Service, EEOC Request No. 05950624 (October 17,
1997). Having found that the agency discriminated against complainant
and the other black applicants, we find that it must award a remedy unless
it can show, by clear and convincing evidence, that complainant would not
have been entitled to that remedy even in the absence of discrimination.
Davis v. Department of Justice, EEOC Request No. 05931205 (September
1, 1994); Day v. Mathews, 530 F.2d 1083, 1085(D.C. Cir. 1976); 29
C.F.R. �1614.501(c)(2). We must now determine whether a remedy is
appropriate in this case.
After reviewing the record we find that complainant would not have been
given the position even if there were no discrimination. On the basis
of the application packages alone, Candidate CP would have been the
most likely choice. Not only did she have the highest overall score,
but she also had more points for experience and awards than complainant.
IR, Tab I. In particular, we note that Candidate CP had 11 points for
awards, whereas complainant had only two. Moreover, in Counts, we ordered
the agency to retroactively promote Candidate SC. Candidate SC's overall
score was approximately 23 points higher than complainant's. Candidate SC
had a slight edge in experience (75 versus 72 for complainant), but had
four times as many points for awards (8 versus two for complainant).
Upon close examination of the two candidates' performance appraisals,
we find that Candidate SC was rated outstanding three times, while
complainant was rated outstanding twice and above average once. We note
in particular that, unlike complainant, Candidate SC received perfect
ratings for the two rating periods preceding the selection. IR, Tabs
J, K. Thus, we find the evidence clear and convincing that at least
one other black candidate would have been selected for the position
ahead of complainant if the selection process had not been tainted
by discrimination. We therefore cannot award complainant retroactive
promotion or back pay.
In Counts, the Commission ordered the agency to conduct training for
the selecting official and other supervisors at the facility and to
post notice. Compliance documentation for Appeal No. 01971293 indicates
that the necessary training had been given in March 2000. Notice was
posted on December 21, 1999. Since the instant case arose out of the same
nonselection, the agency does not have to conduct training or post notice
again. We will therefore not order the agency to repeat these actions.
As to compensatory damages, we have reviewed the formal complaint,
the counselor's report, the investigative report, the various exhibits
attached thereto, the hearing transcript, and complainant's letter of
appeal. There do not appear to be any indications that complainant sought
to recover compensatory damages in connection with her nonselection.
Accordingly, we will not order the agency to award complainant
compensatory damages.
Finally, we address the matter of attorneys fees. In order to recover
attorneys fees and costs, complainant must be a prevailing party.
A "prevailing party" for purposes of obtaining attorney's fees is one who
succeeds on any significant issue in a complaint and achieves some of the
benefits sought in bringing the complaint. Troie v. United States Postal
Service, EEOC Request No. 05930866 (September 22, 1994). For the reasons
discussed above, complainant is not able to achieve any of the benefits
sought in bringing her complaint. To briefly recap, complainant is not
entitled to retroactive promotion or back pay because there were at least
two black candidates for the senior accounting technician position who
were demonstrably better qualified for the position than she. She is
not entitled to compensatory damages because she did not ask for them.
The agency is not required to give training to the selecting official or
post notice because it had already done these things pursuant to our order
in Appeal No. 01971293. Accordingly, we find that complainant is not
a prevailing party, and therefore not entitled to recover attorneys fees.
CONCLUSION
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 final agency decision
and, consistent with our decision in EEOC Appeal No. 01971293, enter a
finding that the December 13, 1995 selection for the senior accounting
technician position was tainted by race discrimination. We leave
undisturbed the administrative judge's conclusion that the agency did
not discriminate against complainant on the bases of age and reprisal
in connection with the aforementioned nonselection. For the reasons,
discussed above, we are unable to award a remedy to complainant in this
case.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
___10-20-00______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.