Terrilyn A. Bailey, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 23, 2000
01990980 (E.E.O.C. Aug. 23, 2000)

01990980

08-23-2000

Terrilyn A. Bailey, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Terrilyn A. Bailey v. Department of Navy

01990980

August 23, 2000

.

Terrilyn A. Bailey,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01990980

Agency No. 95-68327-005

Hearing No. 270-96-9037X

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 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

Complainant alleges she was discriminated against on the bases of

race (African American), color (black), and in reprisal for prior EEO

complaint activity, when on January 25, 1995, she was not selected for

the position of Computer Assistant, GS-335-07/09, at the Naval Reserve

Personnel Center, New Orleans, Louisiana (�NRPC�).

For the following reasons, the Commission REVERSES the agency's final

decision, in part.

The record reveals that complainant, a Computer Assistant GS-335-6

at the NRPC, filed a formal EEO complaint with the agency on March

22, 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 race and color discrimination.

AJ's Findings and Conclusions

The AJ concluded that complainant established a prima facie case of race

and color discrimination because: (1) she is a member of statutorily

protected groups because of her race and color (African American/Black);

(2) she applied and was qualified for the vacancy referenced above,

but she was not selected; and (3) a Computer Assistant GS-335-6

(Caucasian/White) (C1) was selected for the position.

With respect to the reprisal claim, complainant first argued that the

selecting official (SO) (White/White), did not select her because of

an August, 1993 altercation between them. However, the AJ noted that

the record failed to support a finding that the altercation between the

complainant and SO involved protected EEO activity. The complainant

also asserted that SO did not select her because in March 1995, she

filed a sexual harassment complaint against one of SO's subordinates.

While the record shows that the sexual harassment complaint was filed one

day after complainant initiated EEO counselor contact with respect to the

non-promotion case, SO testified that he was aware of the confrontation

between complainant and his subordinate at the time he made his selection,

but did not know if �it had gone EEO.� Given this statement, the AJ

assumed, arguendo, that complainant made out a prima facie case of

reprisal.

The AJ then concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, SO testified

that he reviewed the candidates' SF 171 applications and created a list

of interview questions which he posed to each candidate during their

interviews. SO narrowed his top choices to C1 (White), C2 (Black), and

C3 (Black). SO testified that C2 had worked for him and had been a good

producer, but she had a tardiness problem. In addition, SO testified that

he unofficially knew that C3 was going to be selected for a different

vacancy. SO further testified that complainant was not among his top

candidates, because she was confrontational and adversarial during the

interview.<2> According to SO, the biggest factor weighing against the

complainant's selection was her attitude during the interview.

With respect to C1, SO testified that during the interview she

told him that she had worked with a programmer to write an accounts

payable/receivable system for her husband's business. In addition,

C1 told SO that she had given briefings to the head of the NRPC and

had received a letter of appreciation from a government contractor, for

programming a printer. She also had experience with Individual Readiness

Reserve (IRR) and mobilization. SO explained that he was responsible

for an IRR and mobilization report, but that his subordinates could

not prepare it. Accordingly, another branch was helping him complete

such tasks. In addition, while SO did not solicit comments from the

candidates' supervisors, C1's supervisor approached him and told him

that if he had the chance to hire C1 and he did not, he was a fool,

since she was already working at the GS-11 level.

The AJ further concluded that complainant established that more likely

than not, the reasons provided by the agency were a pretext for race and

color discrimination, but not retaliation. While the AJ found complainant

and C1 similarly qualified for the position, she found the record also

indicated that SO favored C1 for the position prior to the interview.

The record showed that SO talked to C1 daily, asking her how she was

doing and what she was working on; but did not make similar inquiries

of complainant. In addition to the visits, the record shows that SO

asked C1 about her SF 171 application for the position at issue and

encouraged her to apply. While SO affirmed in his affidavit that he

also encouraged Black employees in the Quality Assurance Branch to apply,

all of the Black applicants denied such allegations.

In addition to the above, the AJ noted that C2 testified that when she

asked SO why he did not select her, he responded that he �had a family

to feed.� SO did not refute this testimony. In addition, the AJ found

that a memorandum in the record from SO to his supervisor supported the

conclusion that SO's supervisor put pressure on SO to select C1, over C2.

Accordingly, the AJ found that the profferred reasons for the selection

of C1, were not the real reason she was selected.

In addition, the AJ found SO's testimony regarding C2 disingenuous.

The AJ also found SO's heavy reliance on a factor that was not in the

vacancy announcement (experience with IRR reports) to be suspicious.

The AJ found that the evidence raised a suspicion of mendacity. Such

suspicion combined with the agency's preference for a White candidate

over a Black candidate who was already working in the same branch as

the vacant position and considered by SO to be doing a �superlative

job� was sufficient to show intentional discrimination. Accordingly,

the AJ found that complainant met her burden of establishing race and

color discrimination. However, the AJ determined that complainant

failed in her reprisal claim, since the record was devoid of evidence

of retaliatory motive.

Lastly, despite finding race and color discrimination, the AJ failed

to award a remedy of back pay since she also found that the agency

had presented �clear and convincing� evidence that it would not have

promoted complainant, in the absence of discrimination, but would have

likely promoted C2 instead.

Agency's FAD and Argument on Appeal

The agency generally agrees with the AJ's findings of fact, including

the finding of pretext. However, the agency disagrees with the AJ's

finding that the evidence of pretext, coupled with the fact that a

white candidate was chosen over a black candidate, is sufficient, to

prove discrimination in this case, given the abundance of evidence that

supports a lack of discriminatory animus. In support of the agency's

conclusion of no discrimination, it argues that the complainant's own

testimony and other evidence supports a finding of preselection based

on a �personal� friendship with C1, rather than discriminatory animus.

In addition, the agency points out several facts which support a finding

of no discrimination. The agency argues that SO and complainant did

not have a good working relationship in the past. Specifically,

the agency notes complainant's testimony that she and SO had a

verbal �altercation� at one point when she previously worked for him.

Moreover, complainant testified that SO did not like her very much,

and following the altercation, the relationship between them was one

of �tolerance.� The agency also notes that complainant acknowledged

that SO �leaned more toward� selecting C2 (the other Black candidate)

for the position, but due to indirect pressure from his superiors,

he selected C1. In addition, the agency noted that SO testified that

complainant became confrontational and adversarial during the interview

which played the biggest part in her non-selection. The agency lastly

argues the SO's unrebutted testimony establishes that complainant was

not among the top three candidates considered for the position, and as

the AJ found, it provided clear and convincing evidence that it would

not have selected complainant, in any event, since C2 was the likely

selectee absent the alleged discrimination.

Analysis and Findings

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 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).

We find the factual findings of the AJ, most of which are undisputed,

to be supported by substantial evidence. With respect to complainant's

reprisal claim, we agree with the agency and AJ that the preponderance

of the evidence does not support such a claim. We also find that the

AJ's ultimate conclusion that complainant met her burden of establishing

race and color discrimination to be reasonable based on the following

findings: (1) a White applicant was chosen over complainant (an equally

qualified Black applicant); (2) the AJ's disbelief of the SO's legitimate,

non-discriminatory explanation accompanied by a suspicion of mendacity;

and (3) the agency's preference for a White candidate over C2, a Black

candidate, who was already working in the same branch and considered

by SO to be doing a �superlative job.<3>� See St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 511 (1993).

Once a finding of discrimination is made, an employer may still

avoid providing a remedy for the non-selection by showing with clear

and convincing evidence that the complainant would not have been

selected absent the discrimination. See Day v. Matthews, 530 F.2d

1083 (D.C. Cir. 1976). �Clear and convincing evidence� is defined as

�that [evidence] which results in reasonable certainty of the truth

of the ultimate fact in controversy.� Black's Law Dictionary 251 (6th

ed. 1990).

The AJ found, without explanation, that the agency had presented clear

and convincing evidence that it would have promoted C2 over complainant,

absent discrimination. We disagree. While the AJ did not articulate

the basis for this finding, we must conclude that she relied upon the

testimony of SO, since his testimony is the only source of evidence

distinguishing the top three candidates.<4> While a particular witness

clearly may be deemed credible on some points and not others, the AJ made

no such distinction in her findings. More importantly, the AJ found

the SO more than not credible, she suspected mendacity. Accordingly,

a finding that the agency met its burden in showing that it would not

have selected complainant, even absent discrimination, is not supported

by substantial evidence. See Mahran v. USDA, EEOC Request No. 05940973

(June 20, 1996).

Therefore, and for the reasons set forth herein above, the Commission

REVERSES the agency's final decision, in part.

ORDER (D1199)

The agency is ORDERED to take the following remedial action:

1. The agency shall offer to retroactively promote complainant to the

Computer Specialist GS-334-7/9 position (and any additional career

ladder promotions she would have been entitled to if she had performed

in the position in a fully successful manner), at the agency's Naval

Reserve Personnel Center (NRPC), New Orleans, Louisiana, from January 25,

1995, when she was not selected for the position, through the date this

decision becomes final or the last date of her employment with the agency,

whichever is earlier. Complainant shall be given a minimum of fifteen

days from receipt of the offer of placement 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. Complainant shall also be awarded back

pay, seniority and other employee benefits from the date of the effective

promotion until the present date, or if she is no longer employed by

the agency, then until the last date of her employment.

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 agency shall take corrective, curative or preventive action to

ensure that similar violations of the law will not recur.

4. The agency shall provide at least 16 hours of training to all

supervisors involved in the challenged decision as to the agency's

obligation to eliminate discrimination in the federal workplace.

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, attorney's fees and costs, and other

benefits due complainant, including evidence that the corrective action

has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Naval Reserve Personnel Center, New

Orleans, Louisiana 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.

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.

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).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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, Acting Director

Office of Federal Operations

August 23, 2000

_________________

Date

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.

The U.S. Department of Navy, Naval Reserve Personnel Center, New Orleans,

Louisiana (�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 on the basis of race

and color when on January 25, 1995, an African American employee was not

selected for the Computer Specialist, GS-334-7/9 position. The Facility

has been ordered to: (1) offer complainant a retroactive promotion;

(2) issue an appropriate award of back pay and other benefits, if it

is determined that complainant is so entitled; (3) award reasonable

attorney's fees and costs; and (4) take corrective action in the form

of training the responsible official(s). The Facility will ensure that

officials responsible for personnel decisions and terms and conditions

of employment will abide by the requirements of all federal equal

employment opportunity laws and will not retaliate against employees

who file EEO complaints.

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

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.

2 According to SO's interview notes, the complainant became argumentative

and assumed an adversarial attitude when he declined to reveal in great

detail the criteria he was going to use to arrive at a selection.

3 While not cited by the AJ, we also note that the record shows that

both White applicants were encouraged by SO to apply for the position,

while none of the Black applicants were similarly encouraged.

4 The AJ found and the record establishes that complainant, C1 and C2

were all similarly qualified for the position.