01981684
03-28-2000
Pamela A. Hightower, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Pamela A. Hightower v. United States Postal Service
01981684
March 28, 2000
Pamela A. Hightower, )
Complainant, )
) Appeal No. 01981684
v. ) Agency No. HO-0191-96
) Hearing No. 260-97-9094X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final agency
decision (FAD) concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination on the bases of race
(Black) and reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant contends that she was discriminated against when on April
5, 1996, she was given an official counseling and an evaluation which
was part of her application for promotion to the position of Computer
Systems Programmer/Analyst, DCS-22. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the Commission
REVERSES the FAD.
The record reveals that during the relevant time, complainant was
employed as a DCS-20 Computer Systems Programmer/Analyst (CSPA)
at the agency's Minneapolis Informations Service Center facility in
Minneapolis, Minnesota. On January 6, 1996, complainant was assigned
to a team responsible for developing and implementing a local training
system. On April 6, 1996, as part of complainant's application for
a promotion to CSPA, DCS-22, she received a promotion evaluation from
her team supervisor (TS), and also received a mid-year evaluation and
an official counseling from both TS and the acting business systems
manager (AM) of the team she was assigned to. In previous evaluations,
complainant had consistently received very good to superior ratings on
her various abilities as a computer programmer. However, the rating
of TS in the promotion evaluation differed significantly from previous
evaluations completed by her usual supervisors. Specifically: (1) TS
rated complainant's knowledge of computer programming as rudimentary,
while her previous supervisor found to be a skilled programmer with
Microsoft ACCESS, COBOL and IDMS; (2) TS found that complainant had
great difficulty in her ability to analyze information, while her
previous supervisors rated her as having superior analytical skills;
(3) TS found that complainant had not displayed the ability to work
without almost constant direction of more experienced ACCESS developers,
while her previous supervisors stated that she routinely worked without
immediate supervision. TS further noted for evaluation purposes that
complainant's attitude "reflected an attitude of superiority, intimidation
and negativity which has had a negative reaction on fellow team members.
Peers have shown a reluctance, even fear, to work with, or even sit by,
[complainant]." Complainant subsequently was not promoted to any of
the positions she had applied for within the agency. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a formal complaint of discrimination on June 19, 1996.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Upon holding a hearing, the AJ issued a
Recommended Decision (RD) finding race discrimination concerning the
promotion evaluation.<2> The AJ found that complainant established a
prima facie case of race discrimination regarding her receipt of the
promotion evaluation, as she was treated differently than were similarly
situated employees not in her protected class. The AJ then concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its action, namely, that TS and the AM had concerns about complainant's
performance and attitude towards team members as early as April of
1996, and it was their responsibility to complete an evaluation when
she submitted her application for promotion. However, the AJ found
that complainant demonstrated that the agency's legitimate reasons
regarding the promotion evaluation were more likely than not a pretext
for discrimination. In so finding, the AJ resolved the credibility
questions in favor of complainant, based on her demeanor at the hearing.
The AJ further found that the evidence did not support a finding that
complainant was discriminated against regarding the counseling, as there
was no showing that she was treated differently than were others who
were counseled. In addition, the AJ found that complainant failed to
establish a prima facie case of retaliation, as there was no evidence
connecting the counseling or the evaluation to her prior EEO activity.
The agency issued a FAD rejecting the AJ's RD. The FAD found that while
complainant established a prima facie case of race discrimination, she
failed to demonstrate that the agency's legitimate, nondiscriminatory
reasons for issuing the promotion evaluation, namely, that TS had problems
with complainant's job performance and sought information relevant
to her request for a promotion, was a pretext for discrimination.
On appeal, complainant argues that the FAD erred in finding that she
was not discriminated against, while the agency asks that the Commission
affirm the FAD.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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). A finding that discriminatory intent did not exist is a
factual finding which will be upheld if supported by substantial evidence.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record under the standard set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases) the Commission finds that the AJ's RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We initially agree with the AJ's finding that
complainant failed to establish a prima facie case of race discrimination
with regard to her being given a counseling, as there is insufficient
evidence that she was treated differently than other employees not
in her protected group. We further agree with the AJ's finding that
complainant failed to establish a prima facie case of retaliation,
as the record establishes there was no causal connection between the
actions taken by the agency and complainant's prior EEO complaints,
the last of which was filed more than two years before to the actions
at issue and did not involve AM or TS.
However, we find that the AJ's RD was correct in finding that complainant
established that the agency's articulated reasons for issuing the
promotional evaluation were pretextual in nature. The AJ based her
finding of pretext after finding the hearing testimony of complainant more
credible than that of agency supervisors who prepared and concurred in
the promotion evaluation. In so finding, we reiterate that the findings
of an AJ will be upheld if supported by substantial evidence in the
record. In addition, the Commission has held that an AJ's credibility
determinations are entitled to deference due to the judge's first-hand
knowledge through personal observation of the demeanor and conduct of
the witnesses at the hearing. However, that deference is not automatic.
Further, the Commission notes that it generally will not disturb the
credibility determinations of an AJ where, as here, such determinations
are based on the credibility of the witnesses. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Dept. of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
As we find no reason to disturb the credibility determinations of the
AJ, which are supported by substantial evidence, we agree with her
determination that complainant met her burden in establishing that the
agency's articulated reasons for issuing the performance evaluation were
a pretext for discrimination on the basis of race.
Therefore, after a careful review of the record, and arguments and
evidence not discussed in this decision, the Equal Employment Opportunity
Commission REVERSES the agency's final decision and finds that complainant
was discriminated against on the basis of her race.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. To the extent it has not already done so, the agency shall give
complainant a fair, nondiscriminatory evaluation for promotion, by her
current supervisor, which will be placed in all of complainant's relevant
employment records, including her official personnel file.
The agency shall give complainant priority consideration for the next
three promotions for which she applies.
The agency is directed to conduct sixteen (16) hours of training for the
supervisors and managerial personnel, and all Personnel Department staff
at it Minneapolis, Minnesota facility. The agency shall address this
employees' responsibility with respect to eliminating discrimination in
the workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law.
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 evidence that the corrective action
has been implemented.
The issue of compensatory damages is REMANDED to the Hearings Unit of the
appropriate EEOC field office. Thereafter, the administrative judge
shall issue a decision on these issues in accordance with 29 C.F.R. �
1614.109, and the agency shall issue a final action in accordance with 29
C.F.R. �1614.110 within forty (40) days of receipt of the administrative
judge's decision.. The agency shall submit copies of the decision of the
Administrative Judge and the final agency action to the Compliance Officer
at the address set forth below. As complainant was not represented by
counsel in the pursuit of her EEO claim, attorney fees are not warranted
in the instant case.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Minneapolis, Minnesota 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 (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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (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:
March 28, 2000
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
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 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.
2 The record reflects that prior to the start of the hearing, the AJ
determined that the issue regarding complainant's mid-year evaluation
by TS and AM had been resolved.