01981377
12-22-2000
Melvin P. Hollimon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Melvin P. Hollimon v. United States Postal Service
01981377
December 22, 2000
.
Melvin P. Hollimon,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01981377
Agency No. 4H350272493
Hearing No. 130-97-8018-X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal in the above-entitled matter.<1> Complainant alleged that the
agency discriminated against him on the bases of race (African-American)
and sex (male) in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. when the
agency failed to convert him to a part-time flexible position. 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 (Commission) to REVERSE the final agency decision
(FAD), because the Administrative Judge's (AJ) ultimate finding, that
unlawful employment discrimination was proven by a preponderance of the
evidence, is supported by the record.
Complainant received a hearing on the merits of his claim on May 21, 1997.
At the conclusion of the hearing, the AJ issued findings of fact and
conclusions of law. The AJ concluded that complainant was discriminated
against based on his race and sex. After reviewing the AJ's findings, the
agency decided to reject the findings of discrimination. In support of
its position, the agency issued a final decision wherein it concluded that
complainant failed to establish discrimination and informed complainant
of his right to appeal to the Commission. On appeal from the agency's
final decision, complainant now requests that the Commission reinstate
the AJ's findings of discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
On November 1992, the Long Beach, Mississippi Post Office hired
complainant as a Transitional Employee (TE) Distribution Clerk. During
the interview for the TE position, the Postmaster informed complainant
that there would be no possibility for conversion to a part-time flexible
position. Complainant's tenure with the agency ended at the conclusion
of his 359-day transitional appointment. Complainant did not seek a
part-time flexible position with the agency. During the same period
of time, the Postmaster converted another TE (CW: white, female) to the
position of Distribution Clerk, Part-Time-Flexible.
A complainant may make a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. McDonnell Douglas, 411 U.S. at 802. The
AJ's finding that complainant made a prima facie case of discrimination
is substantially supported by the record. Complainant is a member of
protected classes and was denied conversion while the agency converted
a similarly situated employee who was not a member of complainant's
protected classes. We note that the agency concedes that complainant
made a prima facie case of discrimination.
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). The agency said that it did not convert
complainant because he did not apply for conversion. The AJ therefore
correctly concluded that the agency proffered a nondiscriminatory reason
for its actions.
Finally, it is complainant's burden to demonstrate by a preponderance
of the evidence that the agency's action was based on prohibited
considerations of discrimination, that is, its articulated reason for its
action was not its true reason but a sham or pretext for discrimination
and retaliation. Texas Department Of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S
502 (1993). We agree with the AJ's determination that complainant
successfully established that the reasons proffered by the agency are
a pretext for discrimination. In so finding, we note that the record
reveals that complainant did not apply for conversion to a part-time
flexible position because the Postmaster told him that conversion was not
possible. We further note that complainant had superior qualifications
for such a position; specifically, complainant had previously acquired
career status at one of the agency's facilities in Texas and he worked
as a TE seven months before CW came on-board.
As relief, the AJ ordered the agency to �[a]fford complainant
the opportunity for [conversion and if] the agency decides that
complainant should have been [converted] to a PTF position, then an
ward of backpay... should be accomplished.� We find that the AJ's
recommended remedy is inadequate. We have previously held that where
a selection process is discriminatory at any phase, the applicant
must be awarded full relief, i.e., the position retroactively, unless
the employer shows by clear and convincing evidence that even in the
absence of discrimination, the applicant would not have been selected.
See Pryor v. United States Postal Service, EEOC Request No. 05980405
(August 6, 1999). Placing such an onerous burden on the employer is
proper, inasmuch as the employer's unlawful acts caused the difficulty in
determining what would have resulted if there had been no discrimination.
See id. Thus, in a case such as this one, complainant is entitled to
retroactive placement in a Distribution Clerk, Part-Time-Flexible position
because the agency did not show by clear and convincing evidence that,
even absent discrimination, it would not have selected complainant for
the position he desired. See id.
For the reasons set forth above, we REVERSE the agency's FAD and find
that complainant was subjected to discrimination on the bases of his race
and sex. Accordingly, we remand this matter for further proceedings in
accordance with the following ORDER and the applicable EEOC regulations.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall retroactively place complainant into a position
of Distribution Clerk, Part-Time-Flexible. Complainant shall be given
a minimum of fifteen (15) days from receipt of the offer of placement
within which to accept or decline the offer. Failure to accept the offer
within the time period set by the agency will be considered a rejection
of the offer, unless complainant can show that circumstances beyond his
control prevented a response within the time limit.
2. The agency will provide four (4) hours of EEO training within the
next four months, with an emphasis on Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. for all
relevant officials.
3. The agency shall determine the appropriate amount of back pay 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. Complainant shall cooperate in the agency's efforts
to compute the amount of backpay 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 complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. Complainant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be files with the Compliance Officer, at the address referenced in
the statement entitles Implementation of the Commission's decision.
4. 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 verifying
that the corrective action has been implemented.
5. The agency will post a notice as provided for below.
POSTING ORDER (G0900)
The agency is ordered to post at its Long Beach, Mississippi 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
ATTORNEY'S FEES (H0900)
If complainant 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 (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 22, 2000
Date
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. has occurred at the Long Beach, Mississippi,
Post Office (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 basis of race
and sex when the agency failed to convert him to a part-time flexible
position. The agency shall therefore remedy the discrimination by
offering to retroactively convert complainant and awarding him the pay
he would have received but for the discrimination. 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 16141On 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.