Melvin P. Hollimon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01981377 (E.E.O.C. Dec. 22, 2000)

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.