01982807
02-29-2000
Patricia Ann Lowe, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Patricia Ann Lowe v. Department of Veterans Affairs
01982807
February 29, 2000
Patricia Ann Lowe, )
Complainant, )
) Appeal No. 01982807
v. ) Agency No. 96-1361
) Hearing No. 110-97-8073X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of sex, in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq<1>. Complainant alleges she was discriminated against when she
was not selected for the position of Supervisory Purchasing Agent (SPA).
The appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission reverses the agency's final decision.
The record reveals that the complainant, a purchasing agent at the
agency's Decatur, Georgia facility, filed a formal EEO complaint with
the agency on November 1, 1995, alleging that the agency discriminated
against her as referenced above. At the conclusion of an investigation,
the complainant was provided with a copy of the investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). Following
the hearing, the AJ issued a recommended decision finding discrimination.
The AJ concluded that the complainant established a prima facie case
of sex discrimination. The complainant is a member of a protected
class, female. The agency announced a vacancy for the SPA position.
The complainant, a qualified candidate, applied for the position.
In spite of her qualifications, the agency did not select her for the
position. The selectee was male, and therefore, outside the complainant's
protected group.
The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the selectee
had better responses to interview questions and that the selectee had
more experience than the complainant.
The AJ then concluded that the complainant established that more
likely than not, the agency's articulated reasons were pretext for
discrimination. In reaching her conclusion, the AJ found that in
the early stages of the selection process, the complainant emerged as
the only qualified candidate for the SPA GS-7 position. Despite her
qualifications, the selecting officials reannounced the position as a
GS-6 target GS-7, so that the complainant was forced to compete with
a larger, less qualified, applicant pool. Citing "staying power" and
"meeting the needs of the position" as the paramount criteria, the agency
selected another applicant.
Using the agency's own selecting criteria, the AJ found that the
complainant had superior qualifications, that the selecting official
specifically requested male applicants, that the interview process lacked
objectivity and that during the hearing, the selecting official tried
to manufacture negative things to say about the complainant in order to
justify complainant's nonselection. Accordingly, the AJ recommended a
finding of sex discrimination and a retroactive promotion to Supervisory
Purchasing Agent, GS-7 position, with back pay and interest.
The agency's final decision refused to fully implement the AJ's
recommended decision. The agency argues that the complainant failed to
establish pretext. However, the agency concedes that the complainant
met her initial burden of establishing a prima facie case. On appeal,
complainant contends that the AJ's recommended decision correctly
summarized the facts and reached the appropriate conclusions of law.
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) (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).
Finding that the complainant failed to prove that the agency's stated
reasons were pretext, the agency rejected the AJ's recommended decision.
The agency defends the selecting official's explanation for complainant's
non-selection on the grounds that the selection criteria is properly
within the business judgement of the agency. The AJ considered these
proffered reasons and found by preponderance of the evidence, that the
selection criteria was not properly applied. Further, the AJ found
that the selection criteria was pretext for unlawful discrimination.
After a careful review of the record, the Commission finds that the
AJ's recommended decision summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's recommended decision. Therefore, after a careful
review of the record, including the complainant's arguments on appeal,
the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission REVERSES the agency's final
decision 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:
Within sixty (60) days from the date on which this decision becomes
final, the agency shall retroactively promote the complainant to the
Supervisory Purchasing Agent position, GS-7, from the effective date of
the nonselection, September 17, 1995. The complainant shall also be
awarded back pay with interest, seniority and other employee benefits
due from September 17, 1995, along with any incurred and reasonable
attorney's fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due the 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."
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 of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant, through
counsel, shall submit a request for attorney's fees and costs in
accordance with the Attorney's Fees paragraph set forth below. No later
than sixty (60) days after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a
final agency decision addressing the issues of attorney's fees, costs,
and compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below.
Post a notice in accordance with the paragraph below.
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).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Decatur, Georgia 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.
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).
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:
2/29/2000
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:
Equal Employment Assistant Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that 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 U.S. Department of Veterans Affairs Medical Center in Decatur,
Georgia, (hereinafter referred to as "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 has been found to have discriminated against an employee
by failing to select her for promotion. The agency has been ordered
to promote her. The agency has also been ordered to pay reasonable
attorney's fees and proven compensatory damages.
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 1614
MEMORANDUM
TO: Hearings Unit
Equal Employment Opportunity Commission
Atlanta District
100 Alabama Street
Fourth Floor
Atlanta, Georgia 30303
FROM: Carlton M. Hadden, Acting Director
DATE:
RE: Lowe v. Department of Veteran's Affairs, EEOC Appeal No. 01982807
Enclosed is a DECISION requiring the above referenced complaint be
assigned to an Administrative Judge. We request that the Administrative
Judge notify the Compliance Division at the Office of Federal Operations
after a decision has been issued. If there are any questions concerning
the further processing of this complaint, please contact Robert Barnhart,
Acting Director of Compliance and Control, at (202) 663-4525.
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.