Wilma J. Jackson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01991884 (E.E.O.C. Aug. 28, 2000)

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.