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.