07A20050
05-12-2003
Gladys Rogers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gladys Rogers v. United States Postal Service
07A20050
May 12, 2003
.
Gladys Rogers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20050
Agency Nos. HO-0121-98, HO-0098-99
Hearing No. 250-99-8163X
DECISION
Following its October 22, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of reprisal. For the following reasons,
the Commission reverses the agency's final order and remands the complaint
in part.
Background
Complainant, a Purchasing Assistant, EAS-13, employed at the agency's
Purchasing and Materials Service Center in Memphis, Tennessee (facility),
filed a formal EEO complaint with the agency alleging that the agency had
discriminated against her on the basis of race (African-American), when:
(1) on February 2, 1998, she was not selected for the position of
Purchasing Specialist, EAS-16 (Position 1);
Complainant subsequently filed a second complaint alleging discrimination
on the bases of race, sex (female), and reprisal for prior EEO activity
when:
on October 27, 1998, she was not selected for the position of Purchasing
Specialist, EAS-16 (Position 2).
Complainant applied for Position 1 on December 11, 1997. Her application
was reviewed by a Review Committee (RC or Committee) consisting of
three people (RC1: Caucasian, female; RC2: male, race unknown; and RC3:
male, race unknown). Based on her application materials, complainant,
along with six other applicants, made the �best-qualified� list (BQL).
On February 19, 1998, the selecting official (SO: Caucasian, male)
selected two people from this list (S1: African American, female, and S2:
Caucasian, female) for the position in question. After being notified
of her nonselection, complainant contacted an EEO Counselor and filed
her first complaint on April 19, 1998.
The agency issued a Vacancy Announcement for Position 2 on May 12,
1998. The requirements for the position were in all respects identical
to Position 1. Complainant's application<1> was reviewed by another
Committee consisting of three people. These three were RC1, RC4 (male,
race unknown), and S1, who had only recently been selected for Position 1.
On this occasion, RC1 and S1<2> conducted interviews of all the applicants
and selected four applicants to the BQL. Complainant, however, was
not among these four. From this list, SO selected two applicants, S3
(Caucasian male) and S4 (Caucasian male). Complainant subsequently
filed her second complaint on February 24, 1999.
The complaints were consolidated and an investigation conducted. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an AJ. Following a
hearing, the AJ found that complainant established a prima facie case
of race discrimination and retaliation. While not entirely clear, it
appears the AJ found that complainant did not establish a prima facie case
of sex discrimination. The AJ further found that the agency articulated
legitimate, nondiscriminatory reasons for its actions by stating that the
selectees were better qualified. Regarding discrimination based on race,
the AJ concluded that complainant did not establish, by a preponderance
of the evidence, that the agency's articulated reason was a pretext
for discrimination.
The AJ noted that S1 was the same race as complainant, and found
that complainant failed to establish that her own qualifications were
demonstrably superior to those of S2, the other selectee for Position 1.
Regarding both positions, the AJ further found that complainant was
unsuccessful in showing that SO was racially biased, noting that he
had promoted other African Americans to other positions in the past,
including complainant.
Regarding reprisal discrimination, the AJ found that, with regard
to Position 2, complainant did establish that more likely than not,
the reasons provided by the agency were a pretext for discrimination.
In reaching this conclusion, the AJ observed that the evidence showed
that SO had been contacted by the EEO Counselor in April 1998 regarding
complainant's nonselection for Position 1. The AJ indicated that he
therefore did not find SO's testimony that he was unaware of complainant's
prior EEO activity prior to making the selections for Position 2, to be
credible. In addition, the AJ found that complainant's qualifications
were demonstrably superior to those of S3, who did not even meet the
minimal requirements for the position. The AJ noted that complainant
had been found to be sufficiently qualified to make the BQL when she
applied for Position 1, yet after filing her first EEO complaint, she
failed to make the BQL when she applied for Position 2, despite the fact
that the requirements for both positions were identical. The AJ concluded
that SO used his two trusted employees, RC1 and S1, to retaliate against
complainant by not placing her on the BQL.
RC1 testified that the reason complainant did not make the BQL on the
second occasion was because she provided poor responses during the
interview. Hearing Transcript (HT), p. 379. The AJ, however, did not
find RC1 to be credible on this issue because she had also testified
that complainant was an excellent communicator and public speaker.
HT, p. 398. The AJ further noted that not only had SO promoted both
RC1 and S1, as well as appointing them to the RC, but S1 was appointed
despite the fact that, having been in her position for just a few months,
she may not have gained enough experience with the position to be able
to determine who would make a strong candidate. In addition, the AJ
found, S1 had �made it abundantly clear,� AJ's Decision, p. 20, that
she viewed SO as her mentor. Regarding RC4, the third member of the RC,
the AJ noted that, while SO was able to explain why RC4 was not able to
participate substantively in the creation of the BQL, he was not able
to explain why he had not chosen someone for the RC whose schedule would
have allowed them to fully participate.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred in finding that SO retaliated against
complainant because he had no opportunity to select or reject her since
she had not made the BQL. To support a finding of reprisal, the agency
argues, the evidence must show that either RC1 or S1, or both, chose
to retaliate against complainant for her prior EEO activity, since they
were the ones who did not select her to the BQL, and that such evidence
does not exist. Nor is there evidence showing that SO influenced the
members of the RC to reject complainant, the agency argues. The agency
notes that SO denied any recollection of complainant's EEO activity and
maintains that even if he did have such knowledge, there is no evidence
he harbored any retaliatory animus against complainant.
The agency further argues that the AJ erred in inferring retaliatory
motive from the fact that complainant was not recommended for the BQL
after filing her EEO complaint, despite being recommended for the BQL when
she applied for Position 1. The agency contends that such an inference
would be valid only if all the circumstances surrounding the selection
process were the same in both selections. The agency contends that, on
the contrary, the evidence establishes a number of differences between
the two selections, the most important of which was the fact that,
for Position 1, applicants were recommended to the BQL based on their
application materials, and the RC only interviewed those applicants who
had made the BQL. This was not the case for Position 2, where applicants
were recommended to the BQL based on their interview performance alone.
The agency further denies any inconsistency in RC 1's testimony to the
effect that, while complainant was a good communicator, she performed
poorly during the interview, and argues that it was error for the AJ to
conclude that RC 1 lacked credibility on this issue.
In addition, the agency argues that the AJ erred in finding retaliation
based on the fact that complainant's qualifications were demonstrably
superior to those of S3. We note that the agency essentially does
not dispute the fact that complainant's qualifications were superior,
but instead maintains that the AJ should not second-guess an agency's
business decisions, and further, that any such disparity does not support
a finding of reprisal discrimination. The agency contends that the
BQL was not required to consist of only four applicants and as such,
the selection of S3 to the BQL did not preclude complainant from also
being selected to the BQL had she performed better during the interview.
Furthermore, the agency maintains, given that complainant had not made
the BQL, the ultimate selection of S3 for Position 2 is not indicative
of retaliation, despite his weak qualifications, since by that point
complainant was no longer eligible for consideration. Finally, the agency
argues, for complainant to prevail, she needs to be able to show that
her qualifications were demonstrably superior to all of the applicants
who made the BQL, not just S3, something she has failed to do.
Analysis and Findings
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. We note initially that the agency
cites no authority for its position that for complainant to prevail,
she needs to be able to show that it was RC1 and/or S1, and not SO,
who retaliated against her. Given that the AJ concluded that SO used
his influence over the Committee members in order to manipulate the
process so that complainant would not make it to the BQL, we find the
agency's argument to be disingenuous at best. We note that, if upheld,
such a position would provide management officials with a carte blanche
to discriminate, simply by getting their subordinates to carry out
their dirty work. We agree, however, that for complainant to prevail,
she needs to be able to show that SO did in fact have influence over the
Committee members. As noted above, the evidence shows that SO not only
selected the members, but had also been the one who promoted RC and S1 to
their current positions. In addition, S1 was appointed to the Committee
despite the fact that she had only recently been promoted to her current
position, thus giving her little experience to enable her to determine
who would make a strong candidate. S1's hearing testimony indicated
that she was very grateful to SO, see HT, p. 305, and that she admired
and respected him. HT, pp. 310, 312. We further note SO's inability
to explain why he selected RC4, whose work schedule made him unable to
participate in the interviews and recommendations. Given the above,
we find that the AJ's finding that the RC acted essentially as SO's
surrogate, to be supported by substantial evidence.
Regarding the agency's argument that because the selection procedures
were not identical in the two cases, it was error to infer retaliatory
motive from the fact that complainant made the BQL when she applied for
Position 1, but failed to make it after filing her EEO complaint, we
find that far from exonerating the agency, the fact that the procedures
were changed for Position 2 to be further evidence of discrimination.
We note that no agency official was able to satisfactorily explain why
the more objective procedure for selecting applicants for the BQL for
Position 1, the reliance on the candidates' application materials, was
replaced by a more subjective procedure for Position 2, the reliance on
interviews, despite the fact that the positions were identical. Nor was
SO able to explain why he replaced two of the members from the first RC
with one member who felt beholden to him and another who was unable to
fully participate in the process. We therefore find the AJ's drawing an
inference of retaliatory motive to be supported by substantial evidence.
Regarding the agency's argument that the AJ should not have concluded
that RC 1 and SO lacked credibility, we note initially that an AJ's
credibility determinations are entitled to deference due to the judge's
first-hand knowledge through personal observation of the demeanor and
conduct of the witness at the hearing. Universal Camera, 340 U.S. at
477; Grant v. Department of the Treasury, EEOC Appeal No. 01985972
(August 2, 2001). We further note that, with regard to SO, despite his
denials, the evidence does show that he was notified about complainant's
EEO activity before making the selections for Position 2. We therefore
discern no basis to disturb the AJ's decision in this regard.
While the agency correctly pointed out that the AJ may not second guess an
employer's business decisions, see Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 256.(1981), we note that in nonselection
cases, pretext may be found where the complainant's qualifications are
demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d
1037, 1048 (10th Cir. 1981). We therefore find no error in the AJ's
drawing an inference of discrimination from the fact that complainant's
qualifications were demonstrably superior to those of S3. The agency
argues that because the BQL was not required to contain just four
names, if complainant had performed better during the interview, she too
would have made the BQL, and therefore S3's selection for the position,
despite his weak qualifications, is not probative of discrimination.
Such an argument, however, ignores the fact that SO's handpicked RC
members changed the selection procedures, replacing a more objective
process with a more subjective process in order to keep complainant
from advancing. While it is true that the agency could just as easily
have achieved its desired result of discriminating against complainant
by offering the position to someone else on the BQL whose qualifications
were at least equal to complainant's, we find it reasonable to draw an
inference of discrimination from the fact that it changed its selection
procedure to enable a less qualified candidate to advance, while the
more qualified candidate was rejected. We therefore discern no basis
to disturb the AJ's decision in this regard.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and remands the complaint in part as
set forth in the Order below.
ORDER
The agency is ordered to take the following remedial action:
The issue of compensatory damages and attorney's fees is REMANDED to
the Hearings Unit of the EEOC Memphis District Office. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings
Unit within fifteen (15) calendar days of the date this decision becomes
final. The agency shall provide written notification to the Compliance
Officer at the address set forth below that complaint file have been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
must be assigned to process the issue of compensatory damages and
attorney's fees in accordance with the regulations.
The agency shall promote complainant to the position of Purchasing
Specialist, EAS-16, or a substantially equivalent position retroactive
to the date of the second nonselection (October 1998), no later than
forty five (45) calendar days after the date this decision becomes final.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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. 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."
The agency shall train the responsible management official identified as
being responsible for the nonselection in 1998 regarding his obligations
under Title VII.
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Purchasing and Materials Service
Center, Memphis, Tennessee, 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 (H0900)
If complainant has been represented by an attorney (as defined by
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
May 12, 2003
__________________
Date
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 the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII), 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The United States Postal Service, Purchasing and Materials
Service Center, Memphis, Tennessee, confirms its commitment to comply
with these statutory provisions.
The United States Postal Service, Purchasing and Materials Service Center,
Memphis, Tennessee, supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The United States Postal Service, Purchasing and Materials Service Center,
Memphis, Tennessee, has been found to have retaliated against an employee
for engaging in EEO activity when the employee was not selected for the
position of Purchasing Specialist, EAS-16. The United States Postal
Service, Purchasing and Materials Service Center, Memphis, Tennessee,
has been ordered to place the affected employee in the Purchasing
Specialist position, effective the date of discrimination, provide back
pay, compensatory damages and attorney's fees if applicable, and provide
training regarding reprisal under Title VII to appropriate managers.
The United States Postal Service, Purchasing and Materials Service
Center, Memphis, Tennessee, 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 United States Postal Service, Purchasing and Materials Service Center,
Memphis, Tennessee 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 16141The date of complainant's application for Position
2 is unclear from the record.
2Despite being a member of the Committee, RC4 was not able to participate
in the interview portion or make a recommendation due to his other
work duties.