01982665
12-22-2000
Thomas M. Lilly, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas M. Lilly v. United States Postal Service
01982665
December 22, 2000
.
Thomas M. Lilly,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01982665
Agency No. 4-B-028-1071-95
Hearing No. 160-96-8168X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
based on his sex (male), age (43), and in reprisal for prior EEO activity
when he was not selected for the position of Human Resources Specialist,
EAS-15, on March 9, 1995.
Following a hearing, an EEOC Administrative Judge (AJ) found that
complainant had not established retaliation, but had proven that he was
discriminated against based on sex and age when he was not referred to
the selecting official for an interview. The AJ further found that the
agency had established by clear and convincing evidence that even absent
discrimination, complainant would not have been selected. Therefore,
rather than recommending retroactive placement in the position, the AJ
recommended that complainant be awarded priority consideration for the
next available Human Resources Specialist position in the Providence,
Rhode Island Postal District.<2> The AJ also awarded complainant
reasonable attorney's fees and costs under Title VII, but did not award
compensatory damages, noting that complainant had not sought them.
The FAD adopted the AJ's findings and conclusions with respect to the
retaliation claim, but rejected the AJ's findings and conclusions with
respect to sex and age discrimination. On appeal, complainant contends
that the AJ correctly found discrimination due to complainant's far
superior qualifications compared with the four female candidates selected
for interviews, as well as irregularities in the application process.
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).
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. Applying the substantial evidence
standard of review to the AJ's factual findings, we discern no basis to
disturb the AJ's liability determination. In reaching this conclusion, we
note that agency officials involved in the selection process conceded at
the hearing that complainant's qualifications were incorrectly rated under
the designated "knowledge, skills and abilities"(KSAs) for the position.
Complainant had extensive experience in safety issues deemed relevant to
the position, having provided specialized training to over 100 agency
employees in CPR and First Aid, developed a Back Injury and Carpal
Tunnel Syndrome avoidance training program, served as safety captain,
and provided weekly safety lectures, among other relevant activities.
By contrast, the selectee had virtually no such experience, and received
a higher score with respect to safety-related KSAs even though her only
safety-related accomplishment was once having reported ball bearings
in a hallway as a safety hazard. In addition, some females who
were referred for interviews had lesser KSA scores than complainant.
Moreover, complainant had a college degree and was six credit hours
short of a Master's Degree in Industrial Safety, whereas some younger
females referred for interviews did not have college degrees. The record
supports the AJ's finding that the agency's proffered explanations for
failing to rate complainant more highly with respect to the KSAs of the
position were not credible, and were a pretext for discrimination.
We next turn to the AJ's recommended relief. A job applicant has a
right to be free from discrimination throughout the selection process.
If the process is discriminatory at any phase, the applicant must be
awarded "make whole" relief, typically including retroactive placement
in the position, unless the employer shows by clear and convincing
evidence that even in the absence of discrimination, the applicant
would not have been selected. See 29 C.F.R. � 1614.501(b)(1)(i).
In the instant case, the AJ found the agency established by clear and
convincing evidence that complainant would not have been selected even
absent discrimination, because there was no finding of discriminatory
animus against the selecting official, who did not review complainant's
application because it was never forwarded to him, and further because
complainant's qualifications were equal to those of some of the other
applicants. Accordingly, the AJ did not award complainant retroactive
placement in the position at issue, but instead awarded him priority
consideration for the next available Human Resources Specialist position
in the postal district. See n.2, supra. Although complainant does
not contest this determination on appeal, we find on the facts of this
case the agency failed to demonstrate by clear and convincing evidence
that complainant would not have been selected even in the absence of
discrimination. The AJ's reliance on the fact that there were other
applicants who were equally qualified for the position is misplaced,
since it effectively places the burden on complainant to prove that he
would have been selected absent discrimination. To the contrary, the
burden is on the agency to establish by clear and convincing evidence
that complainant would not have been selected even absent discrimination.
The agency cannot meet this burden solely by showing that there were
other equally qualified candidates, or that the discrimination occurred
at a point in the selection process before the selecting official was
presented with applications for consideration. See Pryor v. United
States Postal Service, EEOC Request No. 05980405 (August 6, 1999).
Therefore, we find that "make whole" relief in the instant case includes
retroactive placement in the position at issue, or a substantially
equivalent position.
Accordingly, 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 AFFIRMS the
FAD with respect to complainant's retaliation claim and REVERSES the
FAD with respect to complainant's sex and age discrimination claims.
The Commission ORDERS the agency to take remedial actions in accordance
with this decision and the following Order.
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 retroactively place complainant in a Human
Resources Specialist (EAS-15) position in the agency's Providence,
Rhode Island Safety Office, or if none is available, in a substantially
equivalent position within the Providence, Rhode Island Postal District.
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 his 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 he was not
selected and the date he commences the position or declines the offer
of reinstatement. 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. Complainant shall be awarded reasonable attorney's fees and costs,
provided that attorney's fees will only be recoverable under Title VII,
not the ADEA.<3> 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.
4. The agency shall provide eight (8) hours of training in applicable
EEO law to the agency managers involved in the instant selection process.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Providence District Safety Office
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.
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
December 22, 2000
__________________
Date
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.
2The Commission has previously interpreted "priority consideration" to
mean that the complainant must be considered before any formal action
to recruit for the vacancy, and must be given bona fide consideration
on his own merit, without competing against other potential candidates.
See Chika v. Department of the Navy, EEOC Request No. 05950148 (December
17, 1996) (citing Bishop v. Department of Transportation, EEOC Request
No. 05910148 (April 10, 1991)).
3We note that in calculating attorney's fees, the hours spent on
complainant's unsuccessful claim (Title VII retaliation) or claims for
which no fees are recoverable (age discrimination), should be excluded
only where the work at issue on such claims is distinct in all respects
from complainant's Title VII sex discrimination claim, on which fees
are recoverable. Hensley v. Eckerhart, 461 U.S. 424 (1983).