01982488
03-12-1999
Derwin A. McGee, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Derwin A. McGee, )
Appellant, )
) Appeal No. 01982488
v. ) Agency No. 1-J-612-1008-95
) Hearing No. 210-97-6310X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) 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. Appellant alleges
he was discriminated against on the basis of race (Black) when in or
about October 1994, he was not selected for the Maintenance Manager
position, EAS-19, at the agency's AMC O'Hare facility, and instead, the
position was filled by another candidate (CW1). The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is REVERSED.
The record reveals that during the relevant time, appellant was employed
as a Maintenance Operations Supervisor, EAS-16 at the agency's Irving
Park, Illinois facility. Believing he was a victim of discrimination,
appellant sought EEO counseling and, subsequently, filed a formal
complaint on May 5, 1995. At the conclusion of the investigation,
appellant was provided a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Appellant's complaint
was consolidated with another case for the purposes of a hearing at the
joint request of the complainants. Following the September 23, 1997
hearing, the AJ issued a Recommended Decision (RD) finding discrimination.
The selecting official (SO) retired from the agency in January 1997.
Although he was notified that he would be called as a witness, he did
not appear at the hearing. The record contains SO's unsigned, two-page,
handwritten investigative affidavit (SO affidavit) which stated, �Based
on the Interview boards (sic) selections (the names submitted to me)
there (sic) [application forms] and my personal interview I determined
that [CW1] was best qualified for the position of Manager, Maintenance.�
(second parenthetical in original). Additionally, the record contains
a letter from SO to appellant dated November 28, 1994 (November 28,
1994 letter), responding to appellant's inquiry as to why he was not
selected for the subject position. In that letter, SO stated that during
the interview he was looking for the managers that �came across as the
most employee committed�, and �had an earnest desire to work with mail
processing to achieve the goals and objectives of AMC and the Postal
Service,� quality service, profitability, and employee commitment.
At the hearing the agency presented the testimony of the concurring
official (CO) who asserted that the selection was made in accordance with
agency procedure and that at no time was appellant's race a factor in
that decision. However, under cross examination CO acknowledged that
he had not independently assessed the candidates' promotion packets
and that SO never discussed with him his reasons for selecting CW1.
The agency also presented the testimony of a member of the selection
committee, who provided information concerning the pre-selection process,
but who professed to having no knowledge concerning the method by which
the SO made his selection decision.
In his RD the AJ concluded that appellant established a prima facie case
of discrimination by showing that he was a member of a protected class; on
May 22, 1994, he submitted a timely application for the subject position
vacancy for which he was minimally qualified; he was not selected for the
position; and on May 22, 1994, CW1, who was not a member of appellant's
protected class, was selected for the position.
The AJ also determined that the agency failed to meet its burden of
producing evidence showing a legitimate, nondiscriminatory reason for
appellant's nonselection, or, alternatively, that any reason proffered
by the agency was not worthy of credence because the agency failed to
support its cited reasons with any probative evidence.
Finally, the AJ determined that there was more than enough elements from
appellant's prima facie case to make a separate finding of intentional
discrimination, because SO knew appellant's race prior to making the
selection; he avoided making any probative comparison of appellant's
qualifications with that of CW1; appellant was highly competitive with
CW1; and SO purposely chose not to subject his selection decision in the
present complaint to scrutiny by refusing to appear for the scheduled
hearing.
Based on the foregoing, on December 8, 1997, the AJ issued a Recommended
Decision (RD) finding discrimination.
On February 2, 1998, the agency issued a FAD rejecting the AJ's RD;
finding that appellant was not subjected to unlawful discrimination.
The FAD concluded that the AJ erred in his finding that the agency failed
to articulate legitimate business reasons for its actions because the AJ
erroneously relied on the fact that SO did not testify at the hearing, and
his unsworn investigative affidavit was legally insufficient to constitute
evidence. Additionally, the agency provided new evidence corroborating
the justification SO cited in his November 28, 1994 letter to appellant.
Based on the foregoing, the FAD concluded that the agency met its burden
of articulating a legitimate, nondiscriminatory reason for its decision
which appellant was unable to prove was pretext for discrimination.
It is unnecessary to address the agency's contention that the AJ erred in
finding that the it failed to articulate a legitimate, nondiscriminatory
reason for its selection decision, because the AJ also found that the
agency failed to support its justification for the selection decision with
any probative evidence. Except for the agency's self-serving statements
presented for the first time in its FAD, the record contains no evidence
supporting the vague statements SO made in justifying his decision to
select CW1 over appellant. The agency may not base a finding of no
discrimination on evidence presented for the first time in its final
decision. The focus of the inquiry should be on the evidence proffered
at the hearing. See Harrell v. Department of the Army, EEOC Request
No. 05940652 (may 24, 1995); Desroches v. United States Postal Service,
EEOC Appeal No. 01960204 (May 12, 1998); Gilbert v. U.S. Postal Service,
01831954 (July 24, 1984). The purpose of requiring the agency to produce
probative evidence supporting a legitimate reason is to focus the inquiry
and give the employee a fair chance to show the reason is pretext. When
the agency relies on reasons articulated for the first time in its final
decision, it deprives the employee of the chance to demonstrate pretext.
Accordingly, the agency's decision finding that appellant was not
subjected to unlawful discrimination is hereby REVERSED. The decision
is further REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
The agency shall retroactively promote appellant to the position of
Manager, Maintenance, EAS-19, at the Agency's O'Hare Mail Center, or
one equivalent in grade retroactive to October 1994. Appellant shall
also be awarded back pay, seniority and other employee benefits from the
date of the effective promotion, along with any incurred and reasonable
attorney's fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant 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 appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant 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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Irving Park, Illinois, 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 (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal OperationsNOTICE 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. has occurred at the O'Hare Air Mail Center
(hereinafter �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 facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the bases of
race (Black) when he was not selected for promotion to the position
of Manager, Maintenance, EAS-19. The agency shall therefore remedy
the discrimination by retroactively placing appellant to the Manager,
Maintenance, EAS-19 position or one equivalent in grade, and providing
the individual applicable back pay, seniority, restoration of leave,
and other benefits, including interest where applicable. The 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.
The facility 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:
29 C.F.R. Part 1614