0720060081
01-05-2007
Linda Pullen-Algee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda Pullen-Algee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07200600811
Agency No. 4J530012203
Hearing No. 260a50071x
DECISION
Following its July 31, 2006 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ's) finding of unlawful retaliation
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The agency also requests that
the Commission affirm its rejection of the relief ordered by the AJ.
For the following reasons, the Commission REVERSES the agency's final
order which failed to fully implement the AJ's decision.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American), color (black) and retaliation for
engaging in prior protected EEO activity when she did not receive
adequate management support while she was serving as Acting Director
of EEO Dispute Resolution, and when she was not selected to permanently
fill the position of Manager of EEO Dispute Resolution at the Milwaukee
Processing and Distribution Center.
Briefly, complainant claimed that when she was in the acting manager
position she was: (1) not given the support necessary to set up a training
class; (2) not allowed to correct information on mediation activity
reports; (3) not allowed to make changes to the I-complaint system; (4)
not allowed to make changes to mediation expense reports; (5) not allowed
to access the E-buy program; and (6) assigned more demanding tasks than
her successor. Further, complainant alleged she was better qualified
than the selectee for the permanent manager position. Complainant filed
a formal complaint and thereafter timely requested a hearing.
Following a hearing an AJ issued a decision finding no race or color
discrimination with respect to both claims. However, the AJ concluded
that unlawful retaliatory animus towards complainant resulted in a lack
of management support while she served in the acting manager role for a
management training course on mediation, and resulted in her non-selection
for the permanent position. Particularly with regard to the non-selection
claim, the AJ supported his decision with specific credibility findings
concerning witness testimony. The AJ found the denial by agency management
witnesses of the importance of employees submitting applications for
promotion in the "STAR" format, which the selectee had not, "spoke
volumes about its credibility." The AJ also found that complainant
prepared a better application and successfully demonstrated that her
qualifications were plainly superior to that of the selectee. Finally,
the AJ concluded that the agency's reason for its selection decision-that
the selectee had performed better during the interview-lacked veracity.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). In its appeal, the agency failed to adequately rebut the AJ's
credibility findings. Rather, it primarily argued its disagreement with
those findings.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to reverse the agency's final order
with regard to the failure to provide complainant management support
with respect to mediation training while she was serving in the acting
capacity, and when it failed to select her for the permanent manager
position, because the Administrative Judge's ultimate finding, that
unlawful retaliation was proven by a preponderance of the evidence, is
supported by the record.2 The Commission also affirms the AJ's findings
of no race or color discrimination with respect to either claim, as well
as the finding of no reprisal discrimination regarding the other issues
concerning the lack of adequate support. The agency shall comply with
the Order as set forth below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days from the date this decision is final,
offer the complainant in writing the position of Manager, EEO Dispute
Resolution or a substantially equivalent position. The complainant shall
have fifteen (15) calendar days from her receipt of the offer within which
to accept or decline the offer. If the offer is accepted, the appointment
shall be retroactive to the effective date of the original selection.
2. Award complainant the back pay (with interest, if applicable) and
other benefits due complainant in accordance with the applicable laws and
regulations from the effective date of the original selection until the
date the complainant declines the offer of reinstatement, referenced in
paragraph 1 above. The agency shall determined that amount of back pay,
with interests, and other benefits 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."
3. Take all necessary steps to ensure that no acts of reprisal
or harassment in any form are taken against complainant for having
exercised her legal rights through the agency's administrative EEO
complaint process or because of this decision.
4. The agency shall consider taking disciplinary action against the
management officials who reprised against complainant. The agency shall
report its decision. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
5. The agency is directed to conduct training for the management officials
involved herein regarding their responsibilities to with respect to
reprisal under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.
6. The agency shall pay complainant $2,500 in non-pecuniary damages.
7. The agency shall complete all of the above actions within 90 calendar
days from the date on which the decision becomes final.
8. 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 Milwaukee, Wisconsin 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 (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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
January 5, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 In reaching this conclusion, the Commission has considered the
agency's argument on appeal that complainant had not established a prima
facie case of reprisal because the two selecting officials did not have
motivation to retaliate against complainant as they had not been named
as responsible officials in her prior EEO complaints and it had not been
affirmatively established that they were aware of her prior protected
activity at the time of the selection. However, complainant argued that
these two officials were heavily influenced in the decision-making process
by the District Manager of the Lakeland District, who was clearly aware
of her prior EEO activity because he had been named in those complaints,
an awareness he conceded to at the hearing. The record further supports
the finding that the District Manager actively participated the selection
decision in his role as "concurring official."
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0720060081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036