Deborah Brown, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Northeast/New York Metro Region), Agency.

Equal Employment Opportunity CommissionFeb 23, 2000
01964355 (E.E.O.C. Feb. 23, 2000)

01964355

02-23-2000

Deborah Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast/New York Metro Region), Agency.


Deborah Brown v. United States Postal Service

01964355

February 23, 2000

Deborah Brown, )

Complainant, )

)

v. ) Appeal No. 01964355

) Agency No. 60-0177-93

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Northeast/New York Metro Region), )

Agency. )

___________________________________)

DECISION

Complainant timely appealed to the final agency decision concerning her

Equal Employment Opportunity (EEO) complaint alleging 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

of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. <1> The Commission

accepts this appeal in accordance with EEOC Order No. 960.001.

In a formal complaint dated March 31, 1993, complainant, a former

JCL Computer Systems Specialist, Level 16, alleged that the agency

discriminated against her based on race (Black), color (unspecified), sex

(female), and age (41) when her position and duties were abolished due to

a consolidation of the New York Postal Data Center with the Minneapolis

Postal Data Center. The agency accepted the complaint and conducted

an investigation. At the conclusion of the investigation, the agency

informed complainant of her right to request either a hearing before

an EEOC administrative judge or a final agency decision on the record.

Complainant requested a final agency decision. On April 2, 1996, the

agency issued a final decision finding no discrimination.

By letter dated December 14, 1992, complainant was informed that due to

the consolidation of the New York Postal Data Center (NYPDC) with the

Minneapolis Postal Data Center (MPDC), her position would be abolished

on February 19, 1993, and that she would be involuntarily reassigned

to the MPDC, effective February 20, 1993. Complainant declined the

reassignment to MPDC. Therefore, in accordance with a Memorandum of

Understanding with the Union, the agency reassigned complainant to the

Carteret, New Jersey Post Office as a Distribution Window Clerk, Level 5.

The former NYPDC roster revealed that approximately 284 employees

lost their positions as a result of the closing. There were 181 male

employees which represented 64% of the staff, and 103 female employees

representing 36% of the staff. Also, 132 of the employees were White,

not of Hispanic Origin, 81 were Black, not of Hispanic Origin, 36 Asian

or Pacific Islander, 33 Hispanic, and two were Native Alaskan or American

Indian. Their ages ranged from 25 years of age to 78 years of age.

In its final decision, the agency found that complainant established an

inference of race discrimination because the NYPDC had a much greater

percentage of Black employees (29 percent) than either the MPDC (11

percent) or the San Mateo PDC (13 percent). Additionally, Whites, were

46 percent of the NYPDC employees, compared to 86 percent of the MPDCs'

employees and 38 percent of San Mateo's PDC.

Notwithstanding its finding above, the agency found that management

articulated legitimate, nondiscriminatory reasons for its decision to

close the NYPDC. Management officials testified that the decision to

close NYPDC was in response to two 1990 studies that concluded that

consolidating postal service computer operations into fewer facilities

would result in enhanced efficiency and cost savings for the agency.

Based on these studies, the agency made plans to consolidate computer

operations into two large data centers located in Minneapolis and

San Mateo. This began with the move of the St. Louis PDC to San Mateo

during July 1992. The decision to select these two sites was based on

several factors including the PDCs' respective sizes (i.e., numbers of

employees), available office space, cost of space, and the possibility

of consolidating additional non-computer data center functions (i.e.,

accounting and information systems) into other Postal Data Centers'

operations. Management decided to retain the MPDC and San Mateo PDC,

because they were large, while the NYPDC and Wilkes-Barre PDCs were the

smallest centers. In addition, both MPDC and San Mateo were housed in

government-owned buildings that had the capacity to expand. Consolidating

computer operations into these centers yielded potentially greater cost

savings than placing them in the NYPDC, which occupied expensive leased

space in New York City (costing almost twice as much as Minneapolis).

Finally, it was determined that the accounting and information system

functions of the NYPDC could be readily consolidated into the four

remaining data centers, and that moving those functions was more cost

effective than retaining them at the NYPDC. The agency projected that

by closing the NYPDC, it would yield cost savings in excess of $40

million dollars over the next five years.

The agency further found that although the decision to close the

NYPDC may have had a disproportionate effect on some of the agency's

minority workers, its impact was actually greater for White employees

who comprised a larger share of the NYPDC work force. The agency

concluded that complainant failed to present any evidence that would

support her allegations that the agency was motivated by discriminatory

considerations in closing the NYPDC. Furthermore, the agency concluded

that complainant failed to prove that her sex, color, race or age, or

the sex/age composition of the NYPDC work force were factors management

considered in deciding to close the NYPDC.

Complainant's allegations of race, color, sex, and age discrimination,

in addition to being asserted under the theory of disparate treatment,

also employed the theory of adverse impact. Thus, with respect to

the adverse impact approach, the intent of the employer is not the

dispositive issue. In such cases, the Commission's focus is on the

effect or impact of a facially neutral practice or policy, i.e., the

decision to close the NYPDC facility, on complainant's protected classes

(race - Black) (color - unspecified), (sex - female), and (age - 41).

See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

In order to establish a prima facie case of discrimination under a

disparate impact analysis, complainant must show that the challenged

practice or policy disproportionately impacted members of her protected

class. Specifically, complainant must: (1) identify the specific

practice or policy challenged; (2) show a statistical disparity; and (3)

show that the disparity is linked to the challenged policy or practice.

Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).

If the complainant establishes a prima facie case of disparate impact,

the burden shifts to the agency to provide a business justification for

the challenged action. See Section 105 of the Civil Rights Act of 1991,

Pub.L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991). Pursuant to the Civil

Rights Act of 1991, once a prima facie case is established, the agency

has the burden of proving that the challenged practice is job-related and

consistent with business necessity. If the agency satisfies this burden,

complainant may nevertheless prevail if he provides an alternative

employment practice that would accomplish the same goal with a less

adverse impact on his protected class.

After a thorough review of the record, and both parties' statement's on

appeal, the Commission concludes that the agency sufficiently rebutted any

prima facie case of disparate treatment and provided a sufficient defense

to alleged adverse impact. In the context of this case, the agency's

arguments relating to enhanced efficiency and cost savings resulting

from consolidation in Minneapolis are sufficient to meet its burden.

The reason for the challenged action, while articulated as a legitimate

non-discriminatory reason, also suffices as a legitimate business

justification and satisfies the agency's burden under both the disparate

treatment and adverse impact theories of discrimination.

Among other things, complainant argues on appeal that the agency's

projected $40 million cost savings would be impossible in light of the

fact that the NYPDC had a binding "unbreakable lease" lease agreement

until 1999. Complainant also contends that many of the provisions of

the negotiated contract that were used to closed the NYPDC were still

being contested by the postal union. Also, complainant argues that

the agency manipulated facts and statistics in an effort to slant the

make-up of the Postal Data Center population, that the agency improperly

relied on statistics relating to the impact on all females as opposed to

minority females, and that the agency improperly represented the NYPDC

as the smaller of the data centers for consolidation purposes.

We find that the agency adequately addressed complainant's issues in its

final decision and its statement on appeal. For instance, in regards to

the issue of the agency's savings from office space, the agency provided

that its lease of the office building where NYPDC was located was binding

until 1998-1999. However, the agency had plans to temporarily utilize the

NYPDC space after the restructuring for its new Area Office operation.

It explained that this avoided the need to locate other space to lease.

The agency also stated once the Area Office moved to another location,

it would take steps to terminate the lease. Furthermore, other options

for the use of the NYPDC existed, such as subletting the space when it

became available. Also, the agency provided that the pending arbitration

with the Union related to the issue of rate retention for the bargaining

unit employees of the NYPDC who were reassigned to other bargaining unit

positions in the agency's New York Metropolitan Area and did not address

the closing of the NYPDC. The agency further noted that it provided

statistical analyses regarding the impact of the NYPDC consolidation

on female and Black Employees at the NYPDC because complainant alleged

both bases in her complaint and focused her argument primarily on the

basis of race. Finally, in response to complainant's assertion that the

NYPDC had more computer equipment and functions, the agency noted that

complainant failed to present any evidence in support of this contention.

In any event, the agency asserted that the studies upon which its decision

was based provided ample justification for the consolidation of computer

functions and pointed to several efficiencies to be gained.

We find that complainant has failed to show that the consolidation

of NYPDC with MPDC served no legitimate business reason or that an

alternative plan, serving the same purpose with less of an adverse impact

on complainant's protected class(es), was available. In the agency's

response to Congressional Conferees concerning its justifications

for the NYPDC's closure, the agency identified annual operations costs

savings as well as overhead cost savings that it projected to yield from

the consolidation. It also provided that its decision to consolidate

was based on a need to become more efficient and remain competitive.

Complainant has not shown that these reasons are pretextual or false.

Neither has complainant brought forth evidence of a less onerous method

for meeting the agency's goals. Accordingly, complainant has not

established a violation of Title VII of the Civil Rights Act of 1964, as

amended or the Age Discrimination in Employment Act of 1967, as amended.

In accordance with this decision, the Commission AFFIRMS the agency's

final decision of no discrimination in violation of Title VII or the ADEA.

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 (S1199)

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:

February 23, 2000

________________ _____________________________

Date Carlton 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

__________________________

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 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.