07a00050
01-10-2001
Naomi Fauntleroy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Naomi Fauntleroy v. United States Postal Service
07A00050
January 10, 2001
.
Naomi Fauntleroy,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A00050
Agency No. HO-0031-99
Hearing No. 100-99-7631X
DECISION
INTRODUCTION
Following its final action notice of August 31, 2000, the agency filed
an appeal of an EEOC administrative judge's (AJ) decision which found
that the agency had engaged in unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the reasons that follow, the Commission REVERSES
the agency's final action.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
preponderant evidence, that she was discriminated against on the basis
of sex (female) when she was not selected as an EAS-25
Purchasing Specialist.
BACKGROUND
Complainant, employed by the agency as an EAS-23 Purchasing Specialist at
the time of the alleged discriminatory event, filed a formal complaint on
June 12, 1998, in which she raised what has been identified as the issue
presented.<2> The agency accepted the complaint for investigation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and was informed of her right to request
either a hearing before an EEOC Administrative Judge (AJ) or an immediate
decision from the agency without a hearing. Complainant chose the former.
The hearing was held on November 3, 17, and 18, 1999. On February 19,
2000, the AJ issued a decision finding that the agency had engaged
in sex discrimination as alleged by complainant. In that decision,
the AJ indicated that she would issue a subsequent decision regarding
the appropriate amount of compensatory damages and attorney's fees to
which complainant was entitled. The subsequent decision was issued
on July 24, 2000. On August 31, 2000 the agency issued a final action
indicating that it would not implement the AJ's decision. The agency
then appealed the AJ's decision to this Commission.
ANALYSIS AND FINDINGS
Sex 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).
After a careful review of the record, the Commission finds that the AJ's
decision correctly summarized the relevant facts.<3> In the absence of
direct evidence of discrimination, the allocation of burdens and order
of presentation of proof in a Title VII case alleging discrimination is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973). First, complainant must establish 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In order to establish a prima facie case of sex discrimination in
non-selection cases, complainant must show that (1) she is a member in
the protected group; (2) she was qualified for the position; (3) she
was not selected for the position; and (4) she was accorded treatment
different from that given to a person(s) otherwise similarly situated who
is not a member of her protected group.<4> See Keyes v. Secretary of the
Navy, 853 F.2d 1016, 1023 (1st Cir. 1988). In this case, complainant,
a female, has proven that she was placed on the best qualified list but
not selected for the position in favor of a male co-worker. For those
reasons, we find that complainant succeeded in establishing a prima
facie case of discrimination.
Now that complainant has succeeded in her initial burden of establishing
a prima facie case, the agency has the burden of production to articulate
some legitimate, nondiscriminatory reason for its actions. Burdine,
450 U.S. at 253. In this case, the agency stated that complainant was
not selected for the position because after careful evaluation of all
applicants, coupled with personal interviews, the selecting official
determined that complainant was not the best qualified candidate given
the needs of the agency at the time.
At this point, the burden shifts back to complainant to establish that
the agency's articulated reason was merely a pretext for discrimination.
According to the AJ's findings, complainant succeeded in this regard.
The AJ stated that the selecting official's pattern of selecting men
prior to complainant's formal EEO complaint, and of selecting women
thereafter, was a factor in her findings. The AJ also found that the
selecting official's statements regarding complainant's need for earnings
and her marriage and family plans were strong evidence of pretext.
Finally, the AJ found the selecting official to be unpersuasive because,
at various points, his testimony was either illogical, contradictory,
or not credible. After thoroughly examining all of the information in
the file, this Commissions discerns no basis to disturb the AJ's analysis
regarding pretext, and therefore discerns no basis to disturb the AJ's
finding of discrimination.
Compensatory Damages
Pursuant to �102(a) of the Civil Rights Act of 1991, a complainant who
establishes that he or she was the victim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (i.e., pain and suffering, mental anguish).
42 U.S.C. �1981a(b)(3). See also West v. Gibson, 527 U.S. 212 (1999)
(holding that compensatory damages may be recovered in the administrative
process). For an employer with more than 500 employees, such as the
agency, the limit of liability for future pecuniary and non-pecuniary
damages is $300,000. 42 U.S.C. �1981a(b)(3).
In this case, the AJ awarded complainant $88,475 in compensatory
damages. After considering the evidence submitted by complainant
and Commission precedent regarding this issue, we find that the AJ's
compensatory damage award is justified. The AJ awarded complainant
$80,000 in non-pecuniary damages. The AJ's award was based on credible
testimony and other evidence which indicated that complainant suffered
worsening of existing gastrointestinal and sleep problems as a result
of the discrimination. Complainant was also prescribed medications for
each of those physical conditions and for her mental state as well.
Complainant testified that she experienced significant weight loss,
was consumed with thoughts of the discrimination to which she was
subjected, felt humiliation in the workplace and no longer enjoyed
working there, experienced difficulties in concentrating on her work,
and underwent a loss of enjoyment in some of her out of work activities
(i.e., golf and reading). Complainant's testimony was corroborated by
her doctor. He diagnosed her with major depression and testified that
the discrimination �ripped her apart.� In cases with similar effects,
we have awarded similar amounts. For example, in Bernard v. Department
of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998), a
non-selection case such as this one, we awarded complainant $80,000 in
non-pecuniary damages where affidavits provided by complainant, friends,
and co-workers described the emotional distress that resulted from the
agency's discriminatory actions. In McCann v. Department of the Air
Force, EEOC Appeal No. 01971851 (October 23, 1998), a removal case,
we found that complainant's testimony and several reports from medical
professionals were sufficient to support a finding that the agency's
discrimination reawakened complainant's post traumatic stress disorder.
As such, she was awarded $75,000 in non-pecuniary damages. Thus,
given the record as a whole, the Commission finds no reason to change
the AJ's award of $80,000 in this case.
The AJ also awarded complainant $8,475 in past and future pecuniary
damages. The AJ's award was based on testimony and evidence provided
by complainant and her doctor. On appeal, the agency does not dispute
the amount awarded. After examining the evidence relied upon by the AJ
in determining this amount, again we find no reason to change the award.
Attorney's Fees and Costs
The Commission may award complainant reasonable attorney fees and other
costs incurred in the processing of a complainant regarding allegations
of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
An award of attorney's fees is determined by calculating the lodestar,
i.e., by multiplying a reasonable hourly fee times a reasonable number
of hours expended. Hensley v. Eckerhart, 461 U.S. 424 (1983); 29
C.F.R. �1614.501(e)(2)(ii)(B). A reasonable hourly fee is the prevailing
market rate in the relevant community. Blum v. Stenson, 465 U.S. 886
(1984).
As stated by the AJ, the agency does not challenge the hourly fees of
complainant's attorney as excessive. While the case was still under the
AJ's jurisdiction, however, the agency challenged some of the attorney's
hours as excessive. Those concerns were presumably addressed by the AJ<5>
since, on appeal, the agency did not challenge the amount of attorney's
fees awarded. For that reason, we find that the AJ's award of $101,200.05
in attorney's fees and $1,285.57 in costs is appropriate.
CONCLUSION
Therefore, after a careful review of the record, including the agency's
arguments on appeal, the complainant's response thereto, and arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final action and REMANDS the matter to the agency
to take remedial actions in accordance with this decision and the
ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Promote complainant to the position of EAS-25 Purchasing Specialist
or a substantially equivalent position retroactive to the date of the
selectee's placement in the position (April 26, 1998);
(2) Award backpay with interest<6> and any other benefits of employment
to complainant from April 26, 1998, to the date of complainant's actual
promotion to an EAS-25 position in November 1998;
(3) Train the selecting official regarding employment discrimination
under Title VII;
(4) Pay complainant the sum of $88,475 in compensatory damages; and
(5) Pay complainant the sum of $101,200.05 in attorney's fees and
$1,285.57 in costs.
POSTING ORDER (G0900)
The agency is ordered to post at its National Mail Transportation
Purchasing (NMTP) 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.
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.
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.
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
January 10, 2001
__________________
Date
1 On 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.
2In addition to sex, complainant also alleged that she was discriminated
against on the bases of race (African-American), religion (Methodist),
and reprisal (prior EEO activity). The AJ found that complainant had been
discriminated against on the basis of sex, but not on the other bases.
On appeal, the agency asserts that the AJ's finding of sex discrimination
should be reversed. The complainant asserts that the AJ's finding should
be affirmed. Because neither party disputes the AJ's finding regarding
complainant's race, religion, and reprisal claims, those issues will
not be addressed herein.
3As such, the facts regarding this case will not be restated herein.
4The Commission notes that comparative evidence is only one method of
establishing a prima facie case, and that there are other ways of making
such a showing. See O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice 915.002 (September 18, 1996).
5Information in the file indicates that the AJ reduced the attorney's
hours by a considerable amount.
6Such interest shall be computed in the manner prescribed by 5 C.F.R. �
550.805.