01971293
09-07-1999
Shirley D. Counts, Appellant, v. William S. Cohen, Secretary, Department of Defense, Army & Air Force Exchange Service, Agency.
Shirley D. Counts, )
Appellant, )
) Appeal No. 01971293
v. ) Agency No. AAFES 96-067
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Army & Air Force Exchange Service, )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black) and age (DOB: 6/19/33), 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. Appellant alleges she was discriminated against
when: she was not selected for the position of Senior Accounting
Technician Grade 6 on December 13, 1995. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as an Accounting Technician, Grade 5 at the agency's Fort Jackson
Exchange, Fort Jackson, South Carolina.
Believing she was the victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint(s) on February
13, 1996. At the conclusion of the investigation, appellant was informed
of her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. Appellant
requested that the agency issue a final decision.
In its final decision, the agency concluded that appellant failed
to establish that its legitimate non-discriminatory reasons for not
promoting appellant were pretextual. The agency's reasons for not
promoting appellant were that she lacked evidence of her leadership
abilities, whereas the selectee (White, DOB: 3/24/54) established that
she had supervisory experience as evidence of her leadership abilities.
On appeal, appellant makes numerous contentions, while the agency stands
on the record and requests that we affirm its FAD.
On appeal, appellant contends that the selecting official (White, DOB:
43 years old) tried to discourage her from applying for the job when she
made a statement implying that appellant would not want the job because
it was part-time. Appellant also contends that the position description
and the job vacancy announcement did not state that the position required
leadership or supervisory experience. Finally, appellant contends that
the selectee was not as qualified as the appellant because the selectee
had to inquire of her co-workers how to do the job once she was selected.
Applying the standards set forth in McDonnell Douglas Corporation
v. Green, 411, U.S. 792 (1973), Texas Department of Community Affairs v.
Burdine, 450 U.S.248 (1981), and Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), we find that appellant established a prima facie case of
race and age discrimination because she is a member of a protected group;
she was qualified and applied for the position; she was not selected for
the position and someone who is White and substantially younger than
the appellant was selected for the position. We also find, contrary
to the agency's conclusion, that the agency's reasons are a pretext for
discriminatory animus toward appellant's racial group.
In reaching this conclusion, we note that of the top five applicants,
four were black and the selectee was white. One top applicant (Black,
DOB: 10/25/50) scored higher than the selectee on the ranking factors
and had many more awards for outstanding service from the agency than
the selectee. All of the black applicants had substantially more years
accounting experience than the selectee and one had an Associate Degree
in Applied Science. There was no evidence that the selectee had an
advanced degree. The selectee worked on a part time basis in all of her
positions with the agency whereas the other candidates worked full-time.
Her lack of time on the job apparently had an impact on her knowledge of
accounting as several witnesses testified that she had to ask questions
of them after she had been selected.
The selecting official's reliance on the fact that the selectee
had supervisory experience is not credible in our view, because the
position description for this job called for someone who was able
to "provide guidance, advice and assistance to lower graded less
experienced associates". The selectee had at most one year on the job
as an accounting technician compared to 14 years for the appellant, and
similar experience levels for each of the other top candidates (15 years,
10 years and 14 years respectively). As several witnesses credibly
testified, the selectee's lack of experience was readily apparent from
her constant questions of them, and the intensive training she received
after her selection. It was clear from the record that the selectee
was not the best candidate and was not as capable of providing guidance,
advice and assistance to other clerks when compared to the appellant or
the other top candidates.
We also discredit the selecting official's statements that the appellant
would not have made a good supervisor or leader, because the selecting
official had recommended the appellant for promotion to a supervisory
position in her Personnel Evaluation Report (PER), and had rated the
appellant as outstanding in her ability to deal with both her co-workers
and customers. This same opinion was also expressed by other supervisors
of the appellant. In addition, each and every one of the other top
candidates had also been recommended for promotion to a supervisory
position, including two by the selecting official.
Finally, we give weight to the statements of the appellant and another
black employee that the selecting official shunned the black employees
socially, and showed little respect for them by failing to announce
her departure from the office during office hours. These are credible
indicators that the selecting official was uneasy working with the black
employees and likely preferred the selectee because of her race.
We did not glean enough evidence on this record to support the appellant's
contention that her non-selection was based on her age.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the FAD and
REMAND this case to the agency to take remedial actions in accordance
with this decision and order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall either retroactively promote appellant to the
position of Senior Accounting Technician Grade 6 from the effective date
of the selection or credit her service record as appropriate for purposes
of her retirement pay calculations, whichever is most appropriate under
the circumstances. Appellant shall also be awarded back pay, seniority
and other employee benefits from the date of the effective promotion as
appropriate, 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 appellant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant 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 appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The appellant 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."
2. The agency is directed to conduct training for the Selecting Official
who was found to have discriminated against the appellant by not selecting
her. The agency shall address this employee's responsibilities with
respect to eliminating discrimination in the workplace and all other
supervisory and managerial responsibilities under equal employment
opportunity law.
3. The agency shall provide a minimum of eight (8) hours of remedial
training for supervisors located at the Fort Jackson Exchange to ensure
that acts of discrimination do not recur.
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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Fort Jackson Exchange, 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 (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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 (R0993)
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. It is the position of the Commission that 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 (Z1092)
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:
9/7/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations