01991884
08-28-2000
Wilma J. Jackson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Headquarters), Agency.
Wilma J. Jackson v. United States Postal Service
01991884
August 28, 2000
.
Wilma J. Jackson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 01991884
Agency No. H0001697
Hearing No. 260-98-7218X
DECISION
Wilma J. Jackson (complainant) timely initiated an appeal from the
agency's final decision (FAD) 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 basis of race
(African-American) when she was not selected for the position of Customer
Support Specialist, DCS-15, on August 3, 1996.
BACKGROUND
The record reveals that complainant, a Customer Support Technician at
the agency's Information Systems Service Center, Minneapolis, Minnesota
facility, filed a formal EEO complaint with the agency on September
28, 1996, 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 AJ concluded that complainant established a
prima facie case of race-based discrimination because she applied and
was qualified for the position in question, but was not selected in
favor of three white applicants.
The AJ then concluded that the agency articulated a legitimate,
nondiscriminatory reason for its action. The agency noted that the three
best-qualified applicants were selected. Specifically, the agency noted
that two of the selectees (S1 and S2) received higher scores from the
Selection Committee, and the third (S3), while receiving the same score
as complainant, performed better at the interview and had a superior
sick leave balance.
The AJ further concluded that complainant established that more
likely than not, the reasons provided by the agency were a pretext for
discrimination. In reaching this conclusion, the AJ found that the
facility was not promoting African-Americans during this time period.
She also concluded that complainant had by far the greatest seniority and
experience in the relevant area (functional assignment area, also known
as customer support area), with eleven years of experience, in comparison
to S1's four years, and S2's and S3's less than two years each. The AJ
noted that petitioner's experience included training other employees in
customer support duties, and working on higher level details, including
a level 15 detail on more than 25 occasions. The AJ concluded from this
evidence that complainant had superior qualifications and experience in
the customer support area. The AJ then noted that she was unpersuaded by
the determination of the Selection Committee that complainant's interview
made her less qualified, noting that the Chairman of the Selection
Committee (CS) testified that the Committee was aware that complainant
knew the answers to the questions she was asked, but was nervous.
In further explaining her disbelief of the agency's explanation and
her belief that discrimination motived the non-selection, the AJ cited
witness testimony describing the discriminatory animus shown by one
of the Selection Committee Members, complainant's supervisor (SCM1),
to African-Americans in general, both in the provision of training
opportunities and in selections. The AJ focused on the fact that
complainant's supervisory evaluation, relied upon by the Selection
Committee, was created by SCM1 and that, when compared to the evaluations
SCM1 did for the other applicants whom he supervised, complainant's was
vague and did not match her qualifications and experience as revealed
in the hearing. As an example, the AJ noted that SCM1 stated that
complainant �used� DOS commands, had formal training and, with the minimal
opportunities he had to observe her, he felt she met the requirement.
In fact, complainant had taken advanced DOS courses. In contrast, SCM1
provided detailed praise of S3's knowledge of DOS, even though S3 had
only been in the department about six months longer than complainant,
noting that S3 had worked on �hundreds of problems that were DOS
related� and had a high level of DOS knowledge. SCM1 also provided
more specific details of other applicants' knowledge. Based on this
and other evidence, the AJ determined that complainant established that
the agency's explanation for not selecting her was a pretext for race
discrimination and therefore recommended a finding of discrimination.
The agency's final decision rejected the AJ's decision. In support
of this rejection, the agency determined that the AJ's decision was
based on erroneous premises. For example, the agency disagreed with
the AJ's determination that African-Americans were not promoted during
this time, noting that no agency official admitted to intentionally
discriminating against anyone. The agency then reiterated its legitimate
nondiscriminatory reasons for not selecting complainant and stated
that complainant failed to establish pretext. In so finding, the
agency noted that the AJ failed to follow Commission precedent which
gives employers broad discretion in making selections that should not
be second-guessed. Finally, the agency noted that the AJ did not follow
Supreme Court precedent holding that even if the agency's explanation for
its action is not believable, complainant bears the ultimate burden of
persuading the trier of fact that she had been the victim of intentional
discrimination.
In response, complainant contends that the AJ's recommended decision
correctly summarized the facts and reached the appropriate conclusions
of law.
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).
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. In so finding, we note that the AJ's factual finding
that complainant has superior qualifications is supported by testimonial
and documentary evidence, as described above. We also note that the
agency's argument that it has broad discretion in making selection
decisions and should not be second-guessed has no relevance in the case
at hand, as this broad discretion is granted only when candidates are
equally qualified and when there is no evidence of unlawful motivation.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981); Fodale v. Department of Health and Human Services, EEOC Request
No. 05960344 (October 16, 1998). Here, the AJ found that complainant has
superior qualifications. Moreover, even if complainant is viewed as only
equally qualified for the position, the AJ also found evidence of unlawful
motivation. For example, the AJ determined that African-Americans were
not being promoted during the relevant period. The agency argued that no
agency official admitted to intentional discrimination. While this is,
of course, true, the agency provided no rebuttal to the complainant's
and another witness's claim that Caucasian employees in the customer
service support area with less experience were promoted instead of
African-American employees with more experience. In support of this
claim, complainant created a long and detailed list of applicants
and selectees for various promotions during the relevant time period,
in which she noted the race and years of experience of each applicant,
along with the races and experience of the selectees. Based on this list,
complainant contended that only 1 out of the last 12 promotions in her
area in the past several years had gone to an African-American, despite
the fact that for each of these promotions two African-American applicants
were eligible and had equal or greater experience. The agency, while
arguing that no agency official admitted to discriminating against anyone,
neither responded to this contention, nor provided contrary evidence.
The AJ's determination that African-Americans were not promoted was
therefore supported by the record and provided evidence of unlawful
motivation.
Similarly, the AJ determined that SCM1 held a discriminatory animus
towards African-Americans, based on the testimony of complainant
and a co-worker. While the agency protested that this finding was
erroneous due to the fact that SCM1 was not available to defend himself,
it provided no rebuttal evidence to witness testimony that SCM1 treated
African-Americans less favorably than Caucasians, denying them training
opportunities and promotions while granting Caucasians such opportunities.
While the agency could not compel the retired SCM1 to testify, it could
have supplied other rebuttal witnesses after complainant and a co-worker
testified to SCM1's discriminatory practices. Numerous employees worked
under SCM1 during the period in question and could have testified that
he did not treat his employees differently on the basis of race, if this
was the case. The AJ's determination that SCM1 held a discriminatory
animus was therefore supported by the record and provided additional
evidence of unlawful motivation. Accordingly, even if the AJ determined
that complainant was only equally qualified for the position, she had
sufficient cause to question the agency's selections.
Finally, the agency's allegation that the AJ ignored Supreme Court
authority has no merit. The agency's argument appears to be that the AJ
disbelieved the agency's articulation and therefore found discrimination,
failing to require complainant to carry the burden of establishing by a
preponderance of the evidence that she was subjected to discrimination.
This argument has no support in the record. While it is true that the
AJ did not believe the agency's explanations for its selection, she also
carefully documented her reasons for finding that complainant established
that those explanations were a pretext for discrimination, including
the AJ's determination that complainant had superior qualifications,
that the facility had not promoted African-Americans, and that SCM1
held a discriminatory animus towards African-Americans. Moreover, the
Supreme Court recently determined that evidence showing that the employer
presented a false reason for a challenged action is sufficient in most
cases to support a finding of discrimination. See Reeves v. Sanderson
Plumbing Products, Inc., 120 S. Ct. 2097, 2108 (2000).
Accordingly, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, we discern
no reason to disturb the AJ's recommended finding of discrimination.
The agency's FAD is therefore REVERSED and the matter is REMANDED to
the agency to take remedial actions in accordance with this decision
and the ORDER below.
ORDER
The agency is ordered to take the following remedial actions:
(1) Within thirty (30) calendar days from the date this decision becomes
final, the agency shall offer to promote complainant to the position of
Customer Support Specialist, DCS-15, or a substantially similar position.
Complainant shall be given a minimum of fifteen (15) calendar 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. Such promotion shall be retroactive to August 3, 1996.
(2) The agency shall determine the appropriate amount of back pay,
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final.<2> If complainant declines to accept the
promotion with the agency, the back pay period shall end on the date
she declines the offer of promotion. 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 complainant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. 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.�
Complainant shall be awarded attorney's fees, as set forth below, if
appropriate.
The agency shall take corrective, curative and preventive action to
ensure that race-based discrimination does not recur, including but not
limited to providing training to all management officials at the United
States Postal Service, Minneapolis, Minnesota facility, Customer Support
Branch, in the law against employment discrimination. Within thirty (30)
calendar days of the date the training is completed, the agency shall
submit to the compliance officer appropriate documentation evidencing
completion of such training.
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 Minneapolis, Minnesota 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, Director
Office of Federal Operations
August 28, 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 (Title VII),
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 United States Postal Service, Information Systems Service Center,
Minneapolis, Minnesota facility (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 was found to have discriminated on the basis of race when
it failed to promote an African-American employee. The agency was
ordered to: (1) offer to retroactively promote the individual to the
position of Customer Support Specialist, DCS-15, or a substantially
similar position; (2) issue an appropriate award of back pay; (3)
award reasonable attorney's fees, if appropriate; (4) take corrective
action in the form of training for management officials; and (5) post
this notice. 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.
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:
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 Evidence in the record suggests that complainant was already promoted to
a DCS-15 position, retroactive to April 29, 1997, through the settlement
of another EEO complaint. The agency shall nonetheless offer complainant
the Customer Support Specialist, DCS-15 position or a substantially
similar position and, whether she accepts this position or not, the
agency must determine the appropriate amount of back pay, interest and
other benefits, retroactive to August 3, 1996.