04A10018
04-23-2001
Pamela Hightower, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Pamela Hightower v. United States Postal Service
04A10018
April 23, 2001
.
Pamela Hightower,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Petition No. 04A10018
Appeal No. 01981684
Agency No. HO019196
Hearing No. 260-97-9094X
DECISION ON A PETITION FOR ENFORCEMENT
On December 20, 2000, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in Pamela Hightower v. United
States Postal Service, EEOC Appeal No. 01981684 (March 28, 2000).
This petition for enforcement is accepted by the Commission pursuant to
29 C.F.R. � 1614.503. Petitioner alleged that the agency failed to fully
comply with the Commission's order set forth in the previous decision.
For the reasons set forth below, the Commission finds that the agency
has not fully complied, and therefore, the Petition is GRANTED IN PART.
Petitioner filed a complaint in which she alleged that the agency
discriminated against her on the bases of race (Black) and reprisal
(prior EEO activity) when she was given an official counseling and
an evaluation which was part of her application for promotion to the
position of Computer Systems Programmer/Analyst, DCS-22. After a hearing,
the EEOC Administrative Judge issued a Recommended Decision (RD) finding
race discrimination regarding her receipt of the promotion evaluation.
Subsequently, the agency, in its final decision, found no discrimination
in regard to both the counseling and promotion evaluation issues.
Petitioner then appealed the agency's final decision to the Commission.
In EEOC Appeal No. 01981684, the Commission found that the AJ's RD
was correct in finding that petitioner established that the agency's
articulated reasons for issuing the promotion evaluation were a pretext
for discrimination. In so finding, the Commission found no reason to
disturb the credibility determinations of the AJ and found that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies and laws. It therefore issued an order for the
agency, among other things, to give petitioner a fair, nondiscriminatory
evaluation for promotion to be placed in all of petitioner's relevant
employment records and to give her priority consideration for the next
three promotions for which she applies.
The order also specified that the agency had to conduct (16) hours of
training for the supervisors and managerial personnel, and all Personnel
Department staff at its Minneapolis, Minnesota facility. The matter
was assigned to an EEOC Compliance Officer and docketed as Compliance
No. 06A00880 on February 20, 2000.
On December 11, 2000, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the agency failed to take the
necessary action, as required by the Commission's order: (1) to give her
priority consideration for the next three promotions she applies for;
(2) to give her a fair, nondiscriminatory evaluation for promotion to be
placed in all of her relevant employment records; (3) to conduct sixteen
(16) hours of training; and (4) to post copies of the Commission's posting
order at its Minneapolis, Minnesota facility. Petitioner contends that
the agency erred in failing to post the notice on the agency's internal
e-mail server.
In its brief in opposition to the petition, the agency contends that it
has complied with the Commission's order, with the exception of providing
petitioner with priority consideration for the next two positions for
which she applies, and the obligation to issue a final action on the
issue of compensatory damages within 40 days of receipt of the AJ's
decision inasmuch as the AJ had not yet issued the relevant decision.
The Commission finds that the agency acted with reasonable due diligence
in all actions connected to the management training and posting notice
issues. However, the Commission agrees with the petitioner that the
agency has failed to provide evidence that it gave priority consideration
to petitioner for the first promotion which she applied for. The evidence
in the record regarding petitioner's application for the DCS-22 Computer
Systems Analyst/Programmer in May of 2000 does not indicate that the
agency gave petitioner any priority consideration for the position or
provided specific reasoning as to why the selectee was chosen rather
than petitioner. To the contrary, the record appears to establish that
petitioner was found qualified for the position and was referred for
consideration with all other qualified applicants. Thus, there is no
evidence in the record to demonstrate that petitioner actually received
bona fide priority consideration for the subject position. See Eleanor
H. Pakele v. Department of the Air Force, EEOC Request No. 05931008
(July 7, 1994). As the Commission's decision required that the agency
give petitioner priority consideration for the next three promotions
for which she applies, we find that to the extent the agency has not
already done so, it shall provide petitioner with priority consideration
for the next three promotions for which she applies.
The Commission disagrees with petitioner's contention that the
record indicates that the agency did not give petitioner a fair,
nondiscriminatory evaluation for promotion by her current supervisor.
The record indicates that while the promotion evaluation dated June 22,
2000 does not significantly vary from the evaluation prepared by her
current supervisor dated April 5, 2000, these most recent evaluations were
not prepared by the supervisor who provided the promotion evaluation which
was found by the AJ to have been motivated by racial animus. The record
establishes that as directed by the AJ, the promotion evaluation from 1996
which was found to be discriminatory was removed from petitioner's records
and her current supervisor prepared a new promotion evaluation which
was placed in her record. As stated by the agency, there is no evidence
which establishes that the most recent evaluations were not prepared in
a fair and nondiscriminatory manner. Finally, the prior order did not
require the agency to post the notice on its internal e-mail server.
Accordingly, the Commission finds that the agency has not fully complied
with our previous Order set forth on EEOC Appeal No. 01981684 (March
28, 2000) and must take additional steps to be in full compliance.
The agency is therefore directed to comply with the ORDER below.
ORDER (CO900)
The agency is ordered to take the following remedial action:
1. To the extent it has not already done so, the agency shall give
petitioner priority consideration for the next three promotions for
which she applies.
Within forty (40) days of receipt of the Administrative Judge's Decision
on compensatory damages and to the extent it has not already done so,
the agency shall issue a final decision on that issue in accordance with
29 C.F.R. � 1614.110. The agency shall submit copies of the decision of
the Administrative Judge and the final agency action to the Compliance
Officer at the address below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant. If
the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has
the right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action." 29
C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e- 16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29
C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing
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
April 23, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
__________________
Date
Equal Employment Specialist