Sheila Woodard, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01970288 (E.E.O.C. Feb. 1, 2000)

01970288

02-01-2000

Sheila Woodard, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Sheila Woodard v. Department of Labor

01970288

February 1, 2000

Sheila Woodard, )

Complainant, )

)

v. )

) Appeal No. 01970288

Alexis M. Herman, ) Agency No. 411088

Secretary, )

Department of Labor, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of race (African-American), sex (female), and age (date of birth:

October 27, 1949), in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

Complainant alleges that she was discriminated against when she was not

selected for two positions within the agency for which she had applied.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED in PART

and REVERSED in PART.

BACKGROUND

The record reveals that during the relevant time period, complainant was

employed as a Mathematician in the Employment Training Administration

("ETA") at the agency's headquarters in Washington, D.C. In July 1993,

the agency issued Vacancy Announcement Number ETA 93-72 for the position

of Computer Specialist, GS-334-14, with ETA. In September 1993, the

agency issued Vacancy Announcement Number ETA 93-95 for the position of

Computer Specialist, GS-14, also with ETA.<2> Complainant applied for

both positions but was selected for neither.

Believing herself to be a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on March 25, 1994. At the

conclusion of the investigation, complainant was informed of her right to

request a hearing before an EEOC Administrative Judge or, alternatively,

to receive a final decision by the agency. When complainant failed to

respond within the time period specified in our Regulations, the agency

issued a FAD.

The FAD concluded that, in light of the explanation provided by the

agency for its actions, complainant had failed to prove that the agency

had discriminated against her in any respect. From the FAD complainant

brings the instant appeal.

ANALYSIS AND FINDINGS

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Department

of Community Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission agrees

with the agency that, with respect to the vacancy advertised in

Vacancy Announcement Number ETA 93-72, complainant has failed to prove

discrimination. The Commission finds, however, with respect to the

vacancy originally advertised in Vacancy Announcement Number ETA 93-95,

that the agency has failed to articulate a legitimate, nondiscriminatory

reason for its actions.

Vacancy Announcement Number ETA 93-72

The record shows that the complainant was one of 12 applicants for this

position who were rated "very good" on each of five evaluation factors.

The applicable collective bargaining agreement dictated that only

10 applicants could be included in the list of certified candidates.

Complainant was one of the two applicants who were not certified, thus

eliminating her from consideration for the position.

According to the agency, in order to determine which two of the applicants

would be eliminated, the Merit Staffing Panel reviewed the applications

again, making "very fine points" of distinction to decide which of the

applicants to certify. The panel members explained that they based

their decisions more on the applicants' technical knowledge of computer

systems, in particular, the UNIX operating system, than on length of

the applicant's experience with the agency. In addition, the panel

members gave more favorable consideration to those applicants who had

experience working with computer systems in the Department of Defense.

These are legitimate, nondiscriminatory reasons for the agency's actions.

Complainant has been unable to show that the agency's explanations for

its actions are pretexts designed to conceal intentional discrimination.

Complainant argues that the agency's purported emphasis on experience

with the UNIX operating systems is pretextual, pointing out that many

of the Forms-171 of those who were chosen over complainant contained no

mention of UNIX. This, without more, is insufficient to prove pretext.

In the absence of expert testimony on the point, we are unable to conclude

that these applicants had no experience with UNIX simply because the

term "UNIX" does not appear in their applications. It may be that UNIX

experience is implicitly reflected in the experience listed in the

applications. Complainant has failed to adduce the necessary expert

evidence to prove her point.

Complainant also argues that the agency's purported emphasis on Department

of Defense experience, which complainant lacked, is pretextual, pointing

out that only one of the 10 applicants who were certified was a current

Department of Defense employee. This fact does not rebut the agency's

case. The record shows that several of the applicants who were placed

on the certification list, although not employed by the Department

of Defense at the time their applications were submitted, had prior

computer-related experience with that department.

Vacancy Announcement Number ETA 93-95

The agency does not dispute that complainant has established a prima

facie case of racial discrimination in that the selectee for this

position is White and complainant is African American.<3> Once an

complainant has set forth a prima facie case, the burden of production

shifts to the agency to articulate a legitimate, nondiscriminatory reason

for its actions. McDonnell Douglas, 411 U.S. at 802-04. The agency

may rebut the presumption of discrimination by clearly setting forth,

through the introduction of admissible evidence, its reasons for not

selecting complainant. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 254-255 (1981).

The agency's explanation must be sufficiently clear to raise a "genuine

issue of fact" as to whether discrimination occurred. Burdine, 450 U.S. at

254. Moreover, it must "frame the factual issue with sufficient clarity

so that [complainant] will have a full and fair opportunity to demonstrate

pretext." id. at 255-256; Parker v. United States Postal Service,

EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at

256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993),

citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,

716 (1983) and Burdine, 450 U.S. at 256. While the agency's burden of

production is not onerous, it must nevertheless provide a specific, clear,

and individualized explanation for the treatment accorded the affected

employee. Lorenzo v. Department of Defense, EEOC Request No. 05950931

(November 6, 1997).

Here the agency has failed to meet this burden. The explanation for

its actions is neither specific, clear, nor individualized. The only

explanation the agency offers for its actions is contained in two

affidavits executed by the selecting official. In the first affidavit,

dated January 20, 1995, the selecting official explained his decision

not to select complainant as follows:

The process I used in my selection of the applicants was that I prepared

a list of six questions, and each candidate was asked the same questions,

and I looked at their background and experience. . . . After comparing

the background, experience, and my interview notes, I believe that I

selected the best qualified applicant for the position.

The way in which the selectee was better qualified for the position was

the selectee's experience in the field of interest were [sic] superior to

[complainant's]. I liked the responses that the selectee gave and I was

convinced that she had the perspective and attitude toward the job that

would ensure success in the office.

None of this information is sufficiently particularized or specific

to permit complainant to mount an evidentiary challenge to any of the

explanations offered by the agency for its actions. The affidavit

sets forth no objective facts to support its conclusions. Even the

subjective observations about "perspective and attitude" lack specific

details which complainant might attempt to show to be untrue.

One and one-half years later, on May 31, 1996, the selecting official

executed an "amended" affidavit in an apparent attempt to remedy the

lack of detail in the first affidavit. It states in relevant part:

When I used the words "field of interest" in my original affidavit, I

was referring to the qualities that the selectee possessed in the field

of applications programming in a variety of languages, and data bases,

and her related knowledge of local area networks.

* * *

What I meant when I used the words "perspective and attitude" was that

the selectee demonstrated self-assurance and confidence, and an ability

to verbalize and articulate her views in a very convincing manner during

the interview to a greater extent than [complainant].

Although the amended affidavit puts a modicum of meat on the bones

of the agency's otherwise skeletal explanation for its actions, it is

insufficient to afford complainant a meaningful opportunity to prove

the explanation to be untrue. It provides no specifics about which

applications, languages or data bases the selecting official considered

to be important in choosing the selectee. Similarly, the amended

affidavit's explanation concerning the meaning of the phrase "perspective

and attitude" is nothing more than a series of conclusory generalities.

We hold that the agency did not adequately explain its decision not

to select complainant. Consequently, complainant was denied a fair

opportunity to demonstrate pretext. See Young v. Department of the

Treasury, EEOC Request 05940517 (October 13, 1995). Thus, we find

that complainant was discriminated against on the basis of race when

she was not selected for the position originally advertised in Vacancy

Announcement Number ETA 93-95.

Compensatory Damages

In her statement on appeal complainant seeks an award of compensatory

damages. However, in the course of the investigation the agency developed

no information concerning the nature and extent of damages complainant

might have suffered. On remand, the agency shall investigate the question

of damages in accordance with the order below.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD as it

relates to the position advertised in Vacancy Announcement Number ETA

93-72 and we REVERSE and REMAND the FAD as it relates to the position

originally advertised in Vacancy Announcement Number ETA 93-95.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1 The agency shall immediately make an unconditional offer of employment

to the complainant for the position of Computer Specialist, GS-14,

or an equivalent position, in the agency's headquarters.

2. The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due 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."

3. The issues of compensatory damages and attorney's fees and costs

are REMANDED to the agency. The agency shall conduct a supplemental

investigation on the issue of complainant's entitlement to compensatory

damages and shall afford complainant an opportunity to establish a causal

relationship between the incident of discrimination and any pecuniary

or non-pecuniary losses. See West v. Gibson, 119 S. Ct. 1906 (1999);

Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390

and 01960518 (April 27, 1998). The complainant shall cooperate in the

agency's efforts to compute the amount of compensatory damages, and shall

provide all relevant information requested by the agency. 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.

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 of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

5. The agency is further directed to post a notice in compliance with

the paragraph below entitled "Posting Order."

POSTING ORDER (G1092)

The agency is ORDERED to post, at its Washington, D.C. headquarters,

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).

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (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 (3O) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (2O) 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:

2/1/00

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:

2/1/00

Date __________________________

Equal Employment Assistant

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 this 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. This facility supports and will comply with

such Federal law and will not take action against individuals because

they have exercised their rights under law.

This facility has been found to have violated Title VII by failing to

select an individual for a position because of her race. The agency

shall therefore remedy the discrimination by: promoting this individual;

providing her with back pay and other benefits due from the date she

would have been promoted; and making a determination on her entitlement

to compensatory damages.

The facility will ensure that officials responsible for personnel

decisions and terms and conditions of employment are properly trained

and in the future, 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. 29 C.F.R. Part 1614.

_____________________

Date Posted: ___________

Posting Expires: _______

1On 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.

2This position was later readvertised under Vacancy Announcement ETA

94-001.

3 Complainant did not establish a prima facie case of sex or age-based

discrimination concerning this position because the selectee was of the

same sex as complainant and was older than complainant.