01973624
01-28-2000
Chiou-Ing Ristau, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Chiou-Ing Ristau v. United States Postal Service
01973624
January 28, 2000
Chiou-Ing Ristau, )
Complainant, )
) Appeal No. 01973624
v. ) Agency No. 4E-870-1114-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
______________________________)
DECISION
Chiou-Ing Ristau (complainant) filed an appeal with this Commission
from a final decision of the agency 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.; and
the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. �621 et seq.<1> Complainant's claim of discrimination is
based on her race (Chinese); national origin (Chinese); sex (female);
and age (DOB: 9/8/43) when, on April 17, 1996, she was not selected for
a Mail Processor position with the agency. The appeal is accepted in
accordance with EEOC Order 960.001, as amended.
Complainant filed a timely formal EEO complaint on June 10, 1996.
Following an investigation by the agency, complainant requested a final
agency decision (FAD). On February 21, 1997, the agency issued a decision
finding no discrimination. It is from this decision that complainant
now appeals.
BACKGROUND
The following is undisputed unless otherwise indicated: Complainant
initially sought employment with the agency in approximately 1993.
At that time she took a written test (scored 85.70) and asked to be
considered for a mail processor, mail carrier or clerk position.
Complainant affirms that at the time of the test, she was advised
by the Human Resources Specialist (RMO1) that whoever scored the
highest on the test would be selected. If there was a tie, the person
with the lowest social security number would be selected. In 1993,
complainant was called in to take a typing test<2>, but was informed,
without explanation, that she failed the test. In 1996, complainant
was called in for a vacant mail handler position (second position).
The mail handler position had a physical requirement (lifting and carrying
70lbs on her shoulder for period of time) which complainant did not pass.
Complainant was then advised of a mail processor vacancy (third position).
There were no additional qualifying tests required for this position.
Complainant submitted an application, took and passed a drug screening
test, and was interviewed.
Complainant affirmed that she was notified of her non-selection when
she call RMO1 to find out the status of her application. According to
complainant, RMO1 explained that complainant was considered in a group
of top three candidates and the best one was selected. Complainant also
claims that RMO1 stated that "perhaps they thought [she] had an English
comprehension problem."
Complainant further claims that in an effort to obtain an explanation for
her non-selection, she contacted the Senior Personnel/Training Specialist
(RMO1's supervisor), RMO2. Complainant claims that she asked RMO2 to
explain the selection criteria and why the selectee was chosen over
complainant. However, according to complainant, RMO2 did not provide
much of an explanation. Complainant received a letter dated April 17,
1996 from RMO2 stating, inter alia, that "our records show that we
reviewed your application, prior work history, background check and
pre-employment requirements (drug screen). In competition with the
other available candidates, we determined that you were not the best
applicant for the Mail Processor position."
Complainant further alleges, and the agency does not dispute, that
complainant reads, speaks and writes three languages. Complainant has
studied English since middle school. In addition, the record indicates
that she has: (1) taken 144 credits of training as a medical lab
technician; (2) four years experience teaching a continuing education
program; and (3) four years experience serving as a technical interpreter.
The record also indicates that complainant has received awards for
high performance. We note from the record that there is no evidence
presented that complainant has an English comprehension problem.
In response to complainant's allegations, RMO2 affirms, in relevant part:
[Complainant's] name appeared on Hiring Worksheet 96-00032 for the
position of Mail Processor in Albuquerque, NM. Her name was considered
three times. The first two considerations resulted in the selection
of two higher-ranking preference eligibles. In the third selection,
three females were considered. [Complainant] was non-selected a third
time and removed from further consideration for this position.
[Complainant's] race, sex, age, and national origin were not considered
in the selection process. Selections were made in accordance with postal
rules and regulations and were made from the best qualified applicants
on the Hiring Worksheet.
Similarly, RMO1 affirms the following in his affidavit, in relevant part:
The actions listed were not discriminatory in nature based upon
[complainant's] race, color, sex, age, national origin, physical and/or
mental disability, or retaliation. ...
[Complainant] was considered three times for the Mail Processor position
and was not selected. Therefore, her name was removed from the register
for Mail Processor.
In selecting an applicant, an overall review of their application,
background check, drug screen, one-on-one interview, and basic competence
in speaking and understanding English is used to determine the best
qualified applicant. ....
FINAL AGENCY DECISION
The agency found that complainant failed to prove a prima facie case
of discrimination, based upon race, sex, national origin, or age since
she was unable to demonstrate that she had been treated differently than
any other comparative employee in a similar situation. In addition, the
agency found that RMO1 and RMO2 articulated legitimate, non-discriminatory
reasons for their employment actions. Specifically, the agency stated
that complainant was considered from the hiring worksheet three times for
a mail processor position and that she was not selected any of the three
instances. The agency noted that its guidelines call for the removal
of a person from consideration upon the third non-selection (the "Rule
of Three"). In addition, the agency found that the evidence reveals that
the complainant was not chosen in any of the three instances because more
qualified applicants were chosen on each occasion. Lastly, the agency
found that complainant failed to prove pretext or discriminatory animus.
Accordingly, the agency found no discrimination.
ANALYSIS AND FINDINGS
We disagree with the agency's analysis. As stated more fully below,
we find that the agency discriminated against complainant on the bases
of race, national origin, sex and age. Accordingly, we hereby REVERSE.
Complainant may establish a prima facie case of discrimination with
respect to her non-selection by showing that she is a member of a
protected class, that she applied for a position for which she was
qualified, and that she was not selected. See Fodale v. HHS, EEOC
Request No. 05960344 (October 16, 1998); See also, McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). It is undisputed that complainant
is a member of several protected classes, as stated herein above.
Moreover, it is undisputed and appears from the record that complainant
was qualified and not selected for the position in question. Accordingly,
we find complainant has sufficiently presented a prima facie case of
discrimination based upon race, national origin, sex and age.
Since complainant has presented a prima facie case of discrimination, the
burden shifts to the agency to articulate a legitimate, non-discriminatory
reason for its non-selection. McDonnell Douglas, 411 U.S. at 802-04.
The agency may rebut the prima facie presumption of discrimination
by clearly setting forth, through the introduction of admissible
evidence, its reasons for favoring the selectee over complainant.
The agency's explanation must be sufficiently clear and specific so
that a complainant has a full and fair opportunity to demonstrate that
the proffered explanation is a pretext for discrimination. See Parker
v. USPS, EEOC Request No. 05900110 (April 30, 1990).
While this burden is not onerous, the agency must nevertheless make
some effort to furnish specific, clear, and individualized explanations
for the non-selection. The agency must give complainant some rationale
that provides her with an opportunity to satisfy her ultimate burden of
proving that the proffered explanation was a pretext for discrimination.
The agency did not meet this burden.
Specifically, we find that complainant clearly alleges discrimination
with respect to the third position for which she applied. Not only has
complainant sufficiently met her prima facie burden, the uncontroverted
evidence tends to support complainant's allegation of national origin
discrimination. The record indicates that complainant was advised that
she had an English comprehension problem, notwithstanding her competency
in three languages. Moreover, we find RMO1's vague references in his
affidavit to English comprehension to be troubling.
While we find that complainant sufficiently alleges discrimination and
the record tends to support a finding of discrimination with respect
to the third position, the responsible management officials explain
why complainant was not selected for the first and second positions.
In addition, the responsible management officials attempt to explain
why complainant was removed from consideration for any future positions
following the third non-selection. However, the agency fails to provide
any specific justification whatsoever with respect to the allegation at
issue. Accordingly, the agency failed to rebut the prima facie inference
of discrimination by articulating a legitimate, nondiscriminatory reason
for its actions. Therefore, we find that complainant was subjected to
discrimination based upon race, national origin, sex and age when she
was non-selected to fill the Mail Processor position (third position).
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall offer complainant a position as a Mail Processor,
retroactive to April 17, 1996. The agency shall accomplish this action
within sixty (60) calendar days of the date this decision becomes final.
2. 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 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.
3. Complainant shall be awarded attorney's fees as set forth below.
4. The agency shall take corrective, curative and preventive action to
ensure discrimination on the bases of race, national origin, sex and
age does not recur, including but not limited to providing training
to the responsible official(s) at the United States Postal Service,
Albuquerque, New Mexico, facility about the law against employment
discrimination. Within thirty (30) calendar days of the date the
training is completed, the agency shall submit to the compliance officer
appropriate documentation evidencing completion of such training.
5. 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 Albuquerque, New Mexico 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 (M1199)
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). 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:
1/28/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. has occurred at
this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service, Albuquerque, New Mexico facility
(USPS), supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The USPS has been found to have discriminated on the bases of race,
national origin, sex and age, when a female applicant was non-selected
for a Mail Processor position, on or about April 17, 1996. The USPS
has been ordered to: (1) offer the female applicant a position as a
Mail Processor retroactive to April 17, 1996; (2) issue an appropriate
award of back pay; (3) award reasonable attorney's fees; and (4)
take corrective action in the form of training for the responsible
official(s). The USPS facility will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The USPS will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted: _____________________ ____________________
Posting Expires: _________________
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.
2It appears, from the record, that this typing test was taken with
respect to the first vacancy.