01991871
10-18-2000
Sheila Yarbrough, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Sheila Yarbrough v. Federal Bureau of Prisons
01991871
October 18, 2000
.
Sheila Yarbrough,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 01991871
Agency No. P-95-8791
Hearing No. 370-97-X2697
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. <1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges that she was discriminated against on the bases of race (Black)
and sex (female) when the agency removed her from the position of Special
Investigative Supervisor in September 1995. For the following reasons,
the Commission REVERSES the agency's final decision.
The record reveals that the agency promoted complainant, a Lieutenant
at the Federal Correctional Institution in Dublin, California, to the
position of Special Investigative Supervisor (SIS) on June 18, 1995.
Complainant filed a formal EEO complaint with the agency on October
24, 1995, alleging that the agency had discriminated against her as
referenced above. 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). Following a hearing, the AJ
issued a decision finding discrimination. The agency rejected the AJ's
finding of discrimination in its November 19, 1998, final decision.
From this decision, complainant now appeals.
ANALYSIS AND FINDINGS
In rejecting the AJ's decision, the agency concluded that the totality of
the record fails to support the AJ's conclusion that the proffered reasons
were a pretext for 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).
On appeal, the agency fails to demonstrate legal error, instead the
agency posits that the AJ's factual findings are against the weight
of the evidence. After reviewing the AJ's factual findings and the
agency's arguments, we find that the AJ's conclusion is adequately
supported by the record. Specifically, the AJ dismissed, as not
worthy of belief, the agency's assertion that complainant was removed
for performance deficiencies. The AJ did not believe that the agency
removed complainant because of her performance. In so finding, the AJ
noted that management never indicated that complainant's performance
was deficient, complainant's appraisals did not indicate any deficiency
in her performance, and complainant's supervisor was unable to give
any examples of complainant's deficient performance. The AJ based her
decision on the facts that were developed at the hearing.
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including 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 finds that
complainant was subjected to discrimination. Therefore this matter is
REMANDED to the agency and to the San Francisco District Office 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. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer complainant the position of Special
Investigative Supervisor or a substantially equivalent position.
Complainant shall be given a minimum of fifteen days from receipt of the
offer within which to accept or decline the offer. Failure to accept
the offer within the time period set by the agency will be considered a
rejection of the offer, unless complainant can show that circumstances
beyond her control prevented a response within the time limit.
2. Within sixty (60) calendar days of the date this decision
becomes final, the agency is directed to award complainant back pay,
with interest, for all wages and benefits lost between the date she
was removed from the position of Special Investigative Supervisor in
September 1995 and the date complainant accepts or declines the offer.
The agency shall determine the appropriate amount of back pay, interest,
and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501(c).
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 Hearings Unit of the San Francisco District 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 Administrative Judge's decision and the final
agency action to the Compliance Officer at the address set forth below.
4. The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under the
statutes enforced by this Commission.
5. 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,
and the agency's decision regarding compensatory damages, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its San Francisco, California 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.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
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
October 18, 2000
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 or retaliation
against any employee or applicant for employment because of that person's
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITYor
PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,
compensation, or other terms, conditions, or privileges of employment.
The Federal Correctional Institution in Dublin, California, (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 retaliated against an employee by
taking reprisal against her for engaging in protected EEO activity.
The facility has been ordered to give the supervisors involved training
regarding the requirements of the law referred to in this posting and to
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment 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.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
MEMORANDUM
TO: U.S. Equal Employment Opportunity Commission
San Francisco District Office, Hearings Unit
901 Market Street, Suite 500
San Francisco, California 94103
FROM: Carlton M. Hadden, Acting Director
DATE:
RE: Sheila Yarbrough v. Federal Bureau of Prisons, EEOC Appeal
No. 01991871
Enclosed is a DECISION requiring the above referenced complaint be
assigned to the Hearings Unit for a determination on compensatory
damages and/or attorney's fees issues. We request that the Hearings Unit
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
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.