Patricia Ann Lowe, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 29, 2000
01982807 (E.E.O.C. Feb. 29, 2000)

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.