01983654
03-22-2000
Karen S. Harding, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Karen S. Harding v. United States Postal Service
01983654
March 22, 2000
Karen S. Harding, )
Complainant, )
) Appeal No. 01983654
v. ) Agency No. 4C442003598
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (White) and age (44), 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 appeal is accepted in accordance with
EEOC Order No. 960.001. For the reasons that follow, the Commission
REVERSES the FAD and REMANDS the case to the agency to implement the
remedial action set forth in the ORDER below.
The record reveals that during the relevant time, complainant was employed
as a Supervisor at the agency's Customer Service facility in Akron, Ohio.
Complainant claims that she had requested a detail to the position of
Labor Relations Specialist (Detail), both verbally and in writing, on
several occasions to several different management officials, including
the Senior Labor Relations Specialist, who was the selecting official
(SO) for the Detail. She contends that she is much better qualified
for the Detail than the selectee (SE), a younger Black woman, but that
SO chose SE because of her minority status and belief that a younger
person would perform more aggressively.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, the agency issued its FAD finding no discrimination.
On appeal, complainant argues that the investigation was inadequate
and the investigator was biased in favor of management<2>. The agency
requests that we affirm its FAD.
The FAD concluded that complainant established prima facie cases of
race and age discrimination by showing that she was qualified for
the detail, but not selected in favor of a younger individual not of
her race. The FAD then found that the agency articulated a legitimate,
nondiscriminatory reason when SO indicated that she had received many
requests for the detail, and decided to select SE. In this regard, the
FAD additionally noted SE's testimony that managers have the authority to
develop employees, apparently suggesting that SE was selected pursuant
to this authority. The FAD then goes on to reason that SO probably
based her decision on a review of all of the requests she received,
and that SE was selected based on the outcome of this review, and not
for discriminatory reasons. Finally, the FAD found that complainant
failed to prove that this reason was a pretext for race discrimination,
or that age was a determinative factor in complainant's non-selection for
the Detail, concluding that complainant did not satisfy her evidentiary
burdens with respect to either basis.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), the Commission agrees with the agency that complainant
established a prima facie case of race and age discrimination. However,
we do not agree with the agency's analysis or finding, as set forth above,
that management articulated a legitimate, nondiscriminatory reason for
its decision to select SE for the Detail.
The agency may rebut the prima facie presumption of discrimination by
clearly setting forth, through the introduction of admissible evidence,
its reasons for not selecting complainant. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). The agency's
explanation must be sufficiently clear to raise a "genuine issue of
fact" as to whether discrimination occurred. See Burdine at 254.
Moreover, it must "frame the factual issue with sufficient clarity so
that complainant will have a full and fair opportunity to demonstrate
pretext." See Parker v. U.S. Postal Service, EEOC Request No. 05900110
(April 30, 1990) (citing Burdine, supra. at 256) The agency's burden of
production is not onerous, but it must nevertheless provide a specific,
clear, individualized explanation for the treatment accorded complainant,
who is entitled to a sufficient rationale for her non-selection adequate
to give her an opportunity to attempt to satisfy her ultimate burden of
proving that the agency's explanation was a pretext for discrimination.
Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November
6, 1997).
Based on our review of the record, we find that SO failed to explain, in a
meaningful way, either why she selected SE or did not select complainant.
She does not provide any information whatsoever about the selection
process, nor does she describe the type of qualifications she was
seeking.<3> We note that the agency does not deny or rebut complainant's
contention that she was far better qualified for the Detail than SE.
For SO to simply say that managers have the authority to develop
employees, and that she decided to choose SE for this "development"
by selecting her for the Detail, without further explanation or
justification, clearly does not satisfy the agency's evidentiary burden
to articulate a legitimate reason for its decision. See Lorenzo, supra.
Thus, we find that the agency's explanation for SE's selection is so
lacking in clarity and specificity that it deprived complainant of a
full and fair opportunity to demonstrate that the proffered explanation
was a pretext for discrimination. See Parker, supra.
Therefore, we conclude that the agency has failed to articulate
a legitimate, nondiscriminatory reason for its action, and that as a
result complainant has prevailed in proving that the agency discriminated
against her based on race and age when she was not selected for the
Detail at issue. Accordingly, we REVERSE the FAD and REMAND the case
back to the agency to comply with the ORDER below.<4>
ORDER
1. Within 30 days from the date this decision is received, the agency will
offer complainant a detail to the position of EAS-17 Labor Relations
Specialist, or a comparable position agreeable to the complainant.
The detail is to be effective for at least a six month period.
Complainant shall also be awarded back pay with interest, seniority and
other employee benefits from September 29, 1997, the effective date of
SE's Detail, as if she had been awarded the Detail at that time.
The agency shall determine the appropriate amount of back pay with
interest and other benefits due complainant, pursuant to 64 Fed. Reg
37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as
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."
2. The agency must conduct not less than 24 hours of training for SO
and any other management officials who were found to have discriminated
against complainant by not selecting her for the Detail at issue.
The agency shall address these employees' responsibilities with respect
to eliminating discrimination in the workplace and all other supervisory
and managerial responsibilities under equal employment opportunity
law, especially that pertaining to race and age discrimination in
non-competitive promotions and detail assignments.
3. The agency must 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.
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).
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).
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:
3/22/00
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
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.
2After review of the record, we find that it contains sufficient evidence
to support the decision herein, and we find no evidence of investigator
bias.
3A review of complainant's qualifications reveal that she has pertinent
experience in personnel work, and good educational credentials, more
than sufficient to qualify her for the Detail.
4As her remedy, complainant requested a detail to a Labor Relations
Specialist position, or a comparable position, and back pay with interest.
She does not request compensatory damages nor is she represented by
an attorney. Moreover, compensatory damages and attorney's fees are
not available under the ADEA. Therefore, provisions for compensatory
damages and attorney's fees are not included in this ORDER.