01A44133_et_al
09-23-2004
Yaner Xu, et al., Complainants, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yaner Xu, et al. v. United States Postal Service
01A44133
09-23-04
.
Yaner Xu, et al.,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A44133, et al.
Agency Nos. 1F-941-1016-96A, et al.
Hearing Nos. 370-03-02554X, et al.
DECISION
INTRODUCTION
Sixty-one (61) individual postal employees<1> (complainants) timely
initiated appeals from the agency's final orders, concerning their
complaints 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.<2> The appeals are accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final order
(FAD).
ISSUE PRESENTED
The issue presented herein is whether the EEOC Administrative Judge (AJ)
properly determined that complainants failed to prove by a preponderance
of the evidence that, between 1988 and 1990 and thereafter, complainants
were not timely appointed to entry level career Distribution Clerk Machine
Operator positions because of their race (Asian) and/or national origin
(mostly Chinese).<3> BACKGROUND
The record reflects that, from 1988 through 1990, approximately 25,000
individuals, including complainants, applied for entry level positions
as Distribution Clerk Machine Operators (DCM) on either Letter Sorting
Machines (LSM) or Flat Sorting Machines (FSM) in the Agency's San
Francisco District.<4> The agency gave 10,000 of these individuals
written examinations and forwarded the completed examinations to a
national test center for scoring. Approximately 9,000 individuals passed
the examination. The agency placed the names of the applicants, along
with their scores, on a register maintained in a computer data base.
The applicants were placed on the hiring register according to score
order. The agency further required applicants to successfully complete
either LSM or FSM dexterity training.
The agency retrieved names and scores from the computer data base
as positions became vacant, and it scheduled applicants for pre-hire
dexterity training. The higher an applicant's test score, the sooner
he or she would be called for training. Where applicants had identical
test scores, the agency used a �tie-breaker� system in which it favored
applicants with the lowest last three digits in their social security
number. When an applicant remained unselected under this system,
he or she was returned to the register to await a subsequent training
opportunity.
Since candidates often became unavailable, lost interest, or failed to
respond after they passed the entry test, the agency's practice was
to retrieve applicant names from the register in excess of available
positions. If an applicant failed to respond to the agency's contact,
declined the offer at the time of contact, or could not attend training at
the time it was offered, the agency considered that applicant unavailable
and identified that applicant as �not available� or �NA� on the pre-hire
training list. The agency provided these applicants the opportunity to
make themselves available for training at a later date.
Once an applicant accepted a training call, the applicant could choose
to be trained on either the LSM or FSM equipment, but not on both
machines.<5> Most applicants chose to be trained on LSM equipment because
the LSM machine required more operators and had a higher wage rate.
When an applicant successfully passed the dexterity test and became
either LSM or FSM qualified, the agency ranked the applicant on hiring
worksheets in score order, utilizing the same social security number
tie-breaker system discussed above. The agency selected applicants
from two hiring pools. One hiring pool consisted of the names of the
FSM-qualified applicants, and the other consisted of the names of the
LSM-qualified applicants.<6> With respect to dexterity tests, qualified
applicants were at times not hired because they did not respond, were
not available to go to work, and/or because they failed to meet other
pre-hire requirements which are not at issue in this case.
Eighty-three (83) complainants filed formal complaints soon after the
agency posted an October 1995 Quarterly Seniority Roster for the clerk
craft at the agency's San Francisco Post Office.<7> The Seniority Roster
listed employees in the clerk craft by name in order of their seniority.
The record reflects that the agency changed the seniority dates of
employee A (Asian, Chinese) and employee B (Asian, Chinese) pursuant to
settlement agreements which resolved complaints of discrimination filed
by employees A and B on July 22, 1994.
In a final agency decision (FAD), the agency dismissed these 83 complaints
on several grounds, including: untimely counselor contact pursuant to 29
C.F.R. � 1614.107(a)(2); failure to cooperate pursuant to 29 C.F.R. �
1614.107(a)(7); and failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). On July 24, 1997, the Commission reversed the FAD and
remanded the complaints to the agency for further processing.
The Administrative Judge's Decision
Following a hearing, the AJ issued a decision on September 12, 2003,
finding no discrimination.<8> The record reveals that complainants
proposed calling eleven (11) complainants as witnesses, and the
AJ approved all 11 witnesses. Once at the hearing, complainants'
representative called four (4) complainant witnesses to testify and eight
(8) agency officials. The agency called two (2) agency officials, and one
(1) expert witness. In addition, the AJ gave complainants the opportunity
to present anecdotal testimony of discrimination during the hearing.
AJ Decision (AJD), at 7.
With respect to the timeliness of the complaints, the record reveals
that the agency moved for the dismissal of the complaints of William
Su, Kit Chu Jeh, Jolly Moi (now Jolly Lieng), Branda Li, and May Chug,
as untimely.<9> Id., at 25. The AJ determined that the sworn testimony
of these five (5) complainants reflected that they sought EEO counseling
in an untimely manner, and he therefore dismissed their complaints. Id.
The AJ considered whether complainants established a prima facie
case of race and/or national origin discrimination, and found that
complainants failed to establish any instance where the agency advanced
non-Asian/non-Chinese applicants in the hiring process order to the
detriment of Asian/Chinese applicants as a result of their race and/or
national origin. Id., at 7-8. The AJ then determined that the agency
provided legitimate nondiscriminatory reasons for its actions through
testimony, as well as through �thousands of pages of documents relating
to the selection of applicants, including complainants, during the
relevant time period.� Id., at 11. In analyzing each of complainants'
allegations of pretext, the AJ determined that complainants failed to
refute the testimony of the manager of personnel services, which the AJ
considered �detailed and convincing.� Id., at 19. The AJ noted that,
since the agency relied on some documents that it produced at the time
of the hearing, he granted complainants up to 20 days to analyze the
data and submit evidence to rebut the agency's reasons. Id., at 18-19.
With respect to the disparate impact theory of discrimination, the AJ
noted that complainants failed to provide evidence to support their
allegation that the adverse consequences of the selections process for
DCM clerks in 1988 through 1990 and beyond fell more harshly on Chinese
and other Asian applicants. Id., at 23. He found the testimony of the
agency's expert witness was of a kind and degree sufficient to show the
agency's selection procedure did not have a disparate impact on Asians,
including Chinese. Id., at 24. The AJ concluded that complainants
failed to prove discrimination under either the disparate treatment or
the disparate impact theories of discrimination. Id.
The AJ further addressed sanctions, as the agency and complainants
moved for such. Id., at 25. The agency requested sanctions against
complainants for matters which arose in the course of discovery, and for
failing to cooperate and appear in connection with several depositions
which were duly noticed and scheduled to be conducted in June and
July 2002. Id. The complainants moved for sanctions, requesting that
certain adverse inferences be drawn against the agency in light of its
alleged willful destruction of relevant records at some point following
the initiation of this case. Id., at 27. The AJ denied the agency's
and complainants' motions.
On October 22, 2003, the agency issued a decision in which it adopted
the decision and findings of the AJ.
Contentions on Appeal
Complainants' union representative submits a statement on appeal on
complainants' behalf, and three complainants submitted three separate
statements. In the statement submitted by the union representative,
the complainants note that some complainants never received a copy of
the AJ decision, and/or a copy of the final agency decision, and thus
were not afforded a right to appeal.<10> Complainants further state
that the agency's assertion that complainants failed to appear for
depositions is false, and they note that most complainants attended
their depositions despite their not being formally served notices to
appear. Complainants maintain that the AJ erred as follows: the AJ
permitted the agency to submit motions without serving complainants;
the AJ limited the amount of time allowed each complainant to testify;
the AJ disallowed some complainants' testimony when he dismissed some
complaints as untimely when complainants appeared to testify; the AJ
failed to appreciate the effect that English as a second language had
upon the testimony of some complainants, evidenced by his disallowing
a translation during the hearing; the AJ allowed the agency to �block�
discovery for many months, and then permitted the agency to arrive at
the hearing with numerous records it had not yet disclosed; and the AJ
refused to allow one additional day of hearings for review of the newly
produced documents and for rebutting testimony.
Complainant Sandra Lee and Kit Chu Jeh also submit arguments and allege
that the agency failed to hire applicants based upon their scores and
selected applicants with last names beginning with P through Z in 1988
and C through L in 1990. Both complainants maintain that an applicant
with a Spanish surname beginning with the letter D was hired immediately
after taking the examination. They also note that they discovered in
1995 that the agency modified the seniority of two of their coworkers
from a start date of 1993 to 1988 because the coworkers were hired later
than they should have been. See supra. Complainant Alice Lin provided
a statement in which she lists applicants with scores lower than hers
who were hired before she was. She notes that the last three numbers
of their social security numbers are higher than hers.
ANALYSIS AND FINDINGS
Standard of Review
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).
Timeliness
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires dismissal of a
complaint or a portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved
person is required to initiate contact with an EEO counselor within 45
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within 45 days of the effective date of
the action. See 29 C.F.R. � 1614.105(a)(1). EEOC Regulations further
provide that the agency or the Commission shall extend the time limits
when the individual shows that he or she was not notified of the time
limits and was not otherwise aware of them, that he or she did not
know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence he
or she was prevented by circumstances beyond his or her control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. See 29 C.F.R. �
1614.105(a)(2). The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine when
the 45 day limitation period is triggered. See Howard v. Department
of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus,
the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
In relevant part, the AJ found that the complaints of complainants Kit
Chu Jeh, EEOC Appeal No. 01A44094; Jolly Moi, EEOC Appeal No. 01A44118;
and May Chug, EEOC Appeal No. 01A44085 were untimely, as their sworn
testimony at the hearing and/or their testimony during depositions
reflected that they sought EEO counseling a year or more after they
suspected discrimination.<11> AJD, at 25. The AJ employed the reasonable
suspicion analysis and determined that: the named complainants were fully
aware of their claims a year or more prior to seeking EEO counseling;
they provided no evidence explaining the reasons for their dilatory
contact; and they presented no evidence demonstrating that they were
unaware of the relevant time frames. Id.
The record reveals that, during the hearing, complainants Chug and Moi
stated that they knew that problems existed with their seniority in 1993.
Hearing Transcript (HT), at 334, 341. Similarly, complainant Jeh stated
that he became aware of the policies he believed discriminatory long
before seeking counseling. See AJ Exhibit (AJE): 7. Complainant Moi
further acknowledged that she received information regarding the filing
of EEO complaints during her orientation for the agency. Id., at 342.
In response to the agency's motion to find the complaints of complainants
Jeh, Moi, and Chug untimely, complainants asked the AJ to take judicial
notice of the fact that complainants are �unsophisticated and speak
English as a second language.� AJD, at 25. Furthermore, on appeal,
complainants contend that the AJ failed to appreciate the effect that
English as a second language had upon the testimony of some complainants,
evidenced by the AJ's disallowing a translation during the hearing.
First we note that, after reviewing the depositions of complainants
and observing the testimony of complainants Su, Chug, and Moi, the AJ
found �nothing in [complainants'] testimony or in their appearance as
witnesses to lead a reasonable person to believe that the[y] did not fully
understand and appreciate the nature and consequence of their actions.�
AJD, at 26. Moreover, the Commission notes that complainants Su, Chug,
and Moi did not request an interpreter during the hearing. Instead,
the record reveals that, during testimony provided by complainant
Cheng, a �dialect was spoken to the complainant� by another complainant
present at the preceding.<12> HT, at 310. The agency objected to said
communication, stating that such communications caused extreme prejudice
to the agency because agency counsel was �without the language capability
to understand what [was] spoken.� Id. The transcript reveals that the
AJ asked that only English be spoken while testimony was being given
since the hearing was being transcribed, and he sustained the objection
and admonished the audience. Id. Complainant Cheng did request an
interpreter; however, the AJ noted that one was not available. Id.,
at 311. The agency then clarified its question, and complainant Cheng
indicated that she understood the questions.<13> Id. The Commission
further notes that, in the only other instance in which a complainant
witness, complainant Su, did not appear to understand the question
presented to him by agency counsel, agency counsel rephrased the question,
and complainant was able to provide an answer. Id., at 322-23.
The Commission finds that the complaints of complainants Kit Chu Jeh,
Jolly Moi, and May Chug were properly dismissed for untimely EEO counselor
contact. The record indicates that each of these complainants provided
testimony that they became aware of the alleged seniority discrepancies
in 1993, but did not initiate contact with an EEO Counselor until October
1995, well beyond the 45 day limitation period. Despite complainants'
contention that they are unsophisticated and speak English as a second
language, the record reflects and the AJ found that, based upon their
appearances at the hearing, complainants understood and appreciated the
nature and consequences of their actions. The record reveals that the
3 named complainants' alleged difficulties with understanding English
did not interfere with their ability to complete required training
classes, perform their job, or provide appropriate responses during
the hearing or at their depositions. Complainants have not persuaded
the Commission that their alleged difficulty understanding the English
language actually prevented them from contacting an EEO Counselor within
the 45 day limitations period. After a careful review of the record,
we find that complainants have failed to present adequate justification
for extending the limitation period beyond 45 days. Therefore, we find
that the AJ's decision to dismiss these 3 complaints for failure to
initiate contact with an EEO Counselor in a timely manner was proper.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For complainants to prevail, they must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainants bear the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Applying the standards set forth in McDonnell Douglas, the
Commission agrees with the AJ's finding that complainants failed to
establish a prima facie case of discrimination on the bases of race
and/or national origin. The AJ found that complainants failed to
identify any instance where the agency advanced non-Asian/non-Chinese
applicants in the hiring process order to the detriment of Asian/Chinese
applicants as a result of their race and/or national origin. AJD, at 7-8.
The AJ noted that the alleged favored employees who were taken out of
order included individuals identified as Asian/Chinese. Id. Indeed,
complainants have not provided sufficient evidence to support an inference
of race and/or national origin discrimination. Although complainants have
identified comparative employees that may have been treated more favorably
then they, the record reveals that the alleged favored employees were
applicants in the same protected status as complainants. See, generally,
O'Connor v. Consolidated Coin Caterer's Group, 517 U.S. 308 (1996).
While comparative evidence is not an essential element of a prima facie
case of discrimination, the complainant must come forward with sufficient
evidence to create an inference of discrimination. Id. Complainants here
have failed to provide sufficient evidence to create such an inference.
Therefore, we find that complainants failed to establish a prima facie
case of race and/or national origin discrimination.
Assuming for the sake of argument that complainants did establish a prima
facie case of race and/or national origin discrimination, the burden
shifts to the agency to articulate legitimate, nondiscriminatory reasons
for its actions. McDonnell Douglas, 411 U.S. at 802-04. The record
reveals that the agency provided testimony, as well as �thousands of
pages of documents relating to the selection of applicants, including
complainants, during the relevant time period,� as evidence to support
its reasons. AJD, at 11. The manager of personnel services (Manager)
testified that there were no instances where the agency excluded a
complainant from the process at any stage, or where a complainant was
not timely trained or appointed in regular rank order when considering,
inter alia: (1) their DCM test score and entry date into the computer
database; (2) their call-in notifications regarding LSM or FSM training;
(3) non-responses or unavailability annotations on the pre-hire trainee
list or hiring worksheet; (4) the negative tie-breaker effect of their
social security numbers; (5) the phase out of LSM machines; and (6)
their official date of appointment. We note that the AJ reviewed
and specifically tracked the hiring process as applied to ten (10)
complainants, and found that no irregularities existed with respect to
these 10 individuals. Id., at 12-18.
Since the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to complainants to demonstrate
that the agency's articulated reasons were pretext for discrimination.
The record reflects that, on February 18, 2003, complainants submitted
their arguments to rebut the agency's asserted reasons, but failed
to identify any discriminatory conduct on the part of the agency.<14>
AJE: 5. Indeed, the AJ properly determined that complainants failed to
refute the testimony of the Manager, which the AJ considered �detailed
and convincing.� AJD, at 19. The AJ found that complainants were
treated similar to or better than non-Asian/non-Chinese applicants in
that: (1) the agency promptly processed the applications of most of
complainants once they passed the entry test; (2) the vast majority of
applicants for DCM operator positions were Asians of Chinese origin; (3)
the qualification and hiring of non-Asians appears to have at times been
adversely affected when compared with Asians; (4) automation affected
Asians and non-Asians alike; and (5) hiring delays did not fall more
harshly on a particular racial category. Id., at 20-21.
On appeal, complainants make various assertions regarding the conduct
of the AJ during the hearing. We, however, find that the hearing
transcript reflects that the AJ acted properly. Although complainants
allege that the AJ permitted the agency to submit motions without serving
complainants, complainants do not specifically identify which motions
the agency failed to serve upon them, nor do they state that the AJ did
not allow them to respond to said motions. Moreover, the record reflects
that the AJ forwarded documents to the parties when he believed that one
party did not receive the submissions of the other party. HT, at 325.
Complainants also maintain that the AJ limited the amount of time allowed
each complainant to testify, and that he disallowed some complainants
testimony when he dismissed their complaints as untimely. We find no
indication in the transcript, however, that the AJ limited the testimony
of complainant witnesses, or that he failed to allow testimony from any
of the approved witnesses. Instead, the record reflects that the AJ
approved 11 complainant witnesses, but complainants chose to call 4. HT,
at 15. Furthermore, the AJ permitted one complainant witness to testify
even though she had not been earlier approved as a witness. AJD, at 2.
Complainants further contend that the AJ allowed the agency to �block�
discovery for many months, then permitted the agency to produce numerous
records it had not yet disclosed at the hearing, and that the AJ refused
to allow one additional day of hearings for review of the newly produced
documents and for rebutting testimony. While the agency produced evidence
for the first time at the hearing, the AJ granted complainants up to 20
days to analyze the data and submit evidence to rebut the agency's reason,
and he left open the possibility of further questioning at a later date
if and when the complainants could identify a need. HT, at 271-272.
Based upon a thorough review of the hearing transcript, the Commission
finds that the AJ properly conducted all aspects of the hearing.
Complainants Sandra Lee and Kit Chu Jeh also submit arguments and allege
that the agency failed to hire applicants based upon their scores,
instead selecting applicants with last names beginning with P through
Z in 1988 and C through L in 1990. We, however, find, as did the AJ,
that the vast majority of the individuals on the hiring worksheets, as
well as some of those individuals identified as favored by complainants,
are members of complainants' protected groups. Therefore, complainants
have failed to show that the agency has acted with discriminatory animus
on the bases of their race and/or national origin. To the extent that
complainants argue that the agency selected applicants with last names
beginning with P through Z in the 1988 time period and C through L
in the 1990 time period, we find that all evidence supports a finding
that the agency utilized a standardized procedure in filling vacancies.
See supra, at 2-3. Furthermore, the October 1995 Quarterly Seniority
Roster reflects that, contrary to complainants' assertion, the agency
hired individuals with last names beginning with C through L in the 1988
time period, and it also hired individuals with last names beginning
with P through Z in the 1990 time period.
Complainants Lee and Jeh further maintain that an applicant (comparator)
with a Spanish surname beginning with the letter D was hired immediately
after taking the examination, and they infer that she must have
been hired without having passed training and medical examinations.
We first note that comparator and these two complainants all scored 100
for the DCM position. Agency Exhibit: A-6. In addition, complainants
provide only their mere assertions that comparator did not participate
in LSM/FSM training and dexterity test before being hired, and we find
nothing in the record to indicate such. Finally, the record reflects
that applicants' names were placed on the hiring register according to
score order; the date an applicant took his or her examination does not
appear to have any relationship to when he or she was contacted by the
agency to attend training.
Complainant Alice Lin provided a statement in which she lists applicants
with scores lower than hers who were hired before she was, and she
notes that the last three numbers of their social security numbers are
higher than hers. A review of the lists with the names of individuals
who have lower scores than complainant Lin reveals that she identifies
numerous individuals with Asian sur-names as having a higher seniority
date than she does. We find that this fact obviates her assertion that
the agency sought to exclude Asians from selection for these vacancies.
Moreover, it remains unclear whether the identified individuals were FSM-
or LSM-qualified.
Finally, complainants have argued that the agency modified the seniority
of two of their coworkers (Asian, Chinese) from a start date of 1993
to 1988 because the coworkers were hired later than they should have
been. The Commission, however, finds that, while some discrepancies
existed in the hiring of applicants, the record reveals that these
errors were a result of the processing of 9,000 applicants, that is,
normal fluctuation, rather than discriminatory animus by agency officials.
In sum, complainants have failed to present any evidence that the agency's
actions were motivated by discriminatory animus towards complainants'
race and/or national origin. We therefore discern no basis to disturb
the AJ's finding that complainants failed to prove by a preponderance
of the evidence that they were discriminated against under a disparate
treatment theory of analysis.
Disparate Impact
The theory of disparate impact requires a showing that: (a) the employer
applied a facially neutral policy that resulted in a disproportionate
adverse impact on a protected group; (b) there was a statistical
disparity; and (c) that the disparity is linked to the challenged
policy or practice. Griggs v. Duke Power, 401 U.S. 424 (1971); Watson
v. Fort Worth Bank and Trust, 487 U.S. 977 (1988). Once a prima facie
showing is made, the employer has the burden of showing that the policy
has �a manifest relationship to the employment in question.� Id.
If the employer is successful in their proof, the complainants must
then demonstrate that other alternative methods or policies could be
used which do not have the discriminatory effect but which serve the
business purpose. Id. Practices or procedures, neutral on their face
and even neutral in terms of intent cannot be maintained if they operate
to freeze the status quo of discriminatory employment practices. Id.
The Civil Rights Act of 1991 effectively codified the requirement that
an employer prove a legitimate business purpose and not merely produce
evidence of it as stated in the Supreme Court case, Wards Cove Packing
Co. v. Atonio, 490 U.S. 642 (1989).
In the present case, the AJ properly found that complainants failed to
provide evidence to support their allegation that the adverse consequences
of the selection process for DCM clerks in 1988 through 1990 and beyond
fell more harshly on Chinese and other Asian applicants. AJD, at 23.
The record reflects that the agency's expert witness (EW) reviewed the
available labor market prior to the hearing and prepared a report.
HT, 359. EW testified that: during the relevant period, the agency
hired more Asians, including Chinese, than were represented in the
civilian labor pool; differences between the hiring order of Asians and
non-Asians occurred because of a person's rank on the hiring worksheet;
no time period at any point in the hiring process was longer for Asians,
including Chinese, than what could be expected randomly or beyond normal
fluctuation; and, in his opinion, there was no statistically significant
data reflecting a race-based disparate impact in the selection process.
Id., 360-72.
Complainants provided no arguments to rebut EW's testimony that the
agency's method of hiring applicants did not have a disproportionate
adverse impact on Asians and/or Chinese. We note that complainants
received EW's report, as well as, per the AJ's order during the hearing,
his spreadsheets. HT, at 376. We further note that EW is an expert
in behavioral and organizational psychology and statistics, and has
conducted �more than 40 and probably 50 plus� validation studies. ID.,
at 356. After carefully reviewing EW's testimony, the Commission agrees
with the AJ's conclusion that there was no race-based disparate impact
in the selection process for DCM clerks in 1988 through 1990 and beyond
which fell more harshly on Chinese and other Asian applicants.
Sanctions
EEOC Regulation 29 C.F.R. � 1614.109(f)(3) authorizes Administrative
Judges to take such actions deemed appropriate, where complainants, an
agency, or its employees fail without good cause shown to respond fully
and in a timely fashion to an AJ's order, or requests for investigative
files, documents, records, comparative data, statistics, affidavits, or
the attendance of witnesses. However, such sanctions must be tailored in
each case to appropriately address the underlying conduct of the party
being sanctioned. A sanction may be used to deter the non-complying
party from similar conduct in the future, coerce compliance in the instant
case, and to equitably remedy the opposing party. Hale v. Department of
Defense, EEOC Appeal No. 01A22458 (July 15, 2003). If a lesser sanction
would suffice to coerce compliance, deter such actions in the future,
or remedy the opposing party, an AJ may be abusing his or her discretion
to impose a harsher sanction. Timerman v. United States Postal Service,
EEOC Appeal No. 07A20094 (February 3, 2004) (citing Pacheco v. United
States Postal Service, EEOC Appeal No. 01970691 (November 25, 1998)).
In the present matter, the Commission finds that the AJ applied the proper
standard, and appropriately denied sanctions, as neither party showed
any prejudice by the other party's actions. The record reflects that the
agency requested sanctions against complainants for matters which arose
in the course of discovery, and for failing to cooperate and appear in
connection with several depositions which were duly noticed and scheduled
to be conducted in June and July 2002. AJD, at 26. The AJ denied the
agency's motions because, for among other reasons, the agency did not
demonstrate that it was prejudiced with respect to the issues in the
case as a result of complainants' failure to cooperate. Id., at 26-27.
Complainants' also moved for sanctions. Specifically, they requested that
certain adverse inferences be drawn against the agency in light of its
alleged willful destruction of relevant records following the initiation
of this case. AJD, at 27. The record reflects that complainants called
5 agency officials as witnesses at the hearing to testify regarding
the agency's failure to retain some documents, but not one of these
witnesses testified to any acts which could be construed as an intentional
destruction of records. Id. Accordingly, the AJ found that complainants
failed to elicit any testimony corroborating their claim that the agency
willfully destroyed relevant documents. Id. Indeed, the AJ noted that
�the fact that so many documents were produced so long after the events
at issue -- well over a decade -- is most impressive.� AJD, at 28.
Furthermore, complainants asserted that the agency failed to maintain
the relevant materials in a particular order, leaving �a great deal� of
sorting and other organizational tasks for them to complete. Id. The AJ,
however, found that there was no evidence indicating that the documents
were not provided in the order in which they were organized and preserved
in the ordinary course of business. Id. The AJ concluded that the
agency attempted to comply in good faith with all discovery orders. Id.
The Commission finds that neither party provided sufficient information
to establish that they were prejudiced by the other party's actions.
The record reveals that the agency failed to identify with any specificity
the alleged costs it incurred when some complainants did not appear for
depositions. AJE: 8. In addition, we note that, on appeal, complainants
claimed that �most complainants appeared for depositions,� despite not
being formally served with notices to appear.
With respect to complainants' motion for sanctions, we agree with the
AJ's finding that complainants failed to show that the agency acted
willfully in destroying some of the relevant documents. We, however,
note that the record reflects that complainants sought counseling for
their complaints in 1995, whereas the event at issue took place from
1988 through 1990, and the Commission's remand order of July 24, 1997
incorrectly identified the relevant period for records to be produces as
July 1, 1995 through April 12, 1996. Xu, et al. v. United States Postal
Service, EEOC Appeal No. 01970744 (July 24, 1997). Furthermore, we
find it significant that the AJ permitted complainants additional time
(20 days) to review all newly produced documents, while continuing the
hearing and keeping the record open to enable complainants to throughly
analyze the documents.<15> Finally, and most importantly, complainants
have not shown that they were prejudiced by the agency's failure to
retain some records pertaining to the selection of applicants.
For the above stated reasons, the Commission determines that the
circumstances presented herein did not warrant the ultimate sanction of
a finding of discrimination for the complainants, or the award of costs
incurred to the agency. The Commission thus finds that the AJ acted
properly in denying both parties' requests for sanctions.
CONCLUSION
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. The record reflects that complainants failed to present
sufficient evidence, showing that any of the agency's actions were
discriminatorally based upon their race and/or national origin, and we
therefore discern no basis to disturb the AJ's decision. After a careful
review of the record, including complainants' arguments on appeal, and
arguments and evidence not specifically addressed in this decision,
we find that the AJ's decision finding no discrimination was proper.
Accordingly, we affirm the agency's final decision.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
___09-23-04_______________
Date
Angela Cho,
EEOC Appeal No. 01A41029
Chit Yee Chong,
EEOC Appeal No.01A44081
Laing Chow,
EEOC Appeal No.01A44082
Luan Chu,
EEOC Appeal No.01A44083
Faye Chu,
EEOC Appeal No.01A44084
May Chung,
EEOC Appeal No.01A44085
Jamie Chung,
EEOC Appeal No.01A44086
Nelly Fu,
EEOC Appeal No.01A44087
Diana Gong,
EEOC Appeal No.01A44088
Mary Ham,
EEOC Appeal No.01A44089
Christina Ho,
EEOC Appeal No.01A44090
Yvonne Huang,
EEOC Appeal No.01A44091
Peter Huynh,
EEOC Appeal No.01A44092
Diana Hway,
EEOC Appeal No.01A44093
Kit Jeh,
EEOC Appeal No.01A44094
Vinder Kaur,
EEOC Appeal No.01A44095
Florence Kho,
EEOC Appeal No.01A44096
Kay Kim,
EEOC Appeal No.01A44097
Myung Kim,
EEOC Appeal No.01A44098
Michael Koo,
EEOC Appeal No.01A44099
Catherine Kung,
EEOC Appeal No.01A44100
Lisa Kwong,
EEOC Appeal No.01A44101
Rozana Lee,
EEOC Appeal No.01A44102
Sandra Lee,
EEOC Appeal No.01A44103
Cornel Lee,
EEOC Appeal No.01A44104
Kwan Lee,
EEOC Appeal No.01A44105
Gon Leong,
EEOC Appeal No.01A44106
Ming Leung,
EEOC Appeal No.01A44107
Mary Leung,
EEOC Appeal No.01A44108
Gene Li,
EEOC Appeal No.01A44109
Becky Liang,
EEOC Appeal No.01A44110
Donald Lim,
EEOC Appeal No.01A44111
Carolina Lima,
EEOC Appeal No.01A44112
Alice Lin,
EEOC Appeal No.01A44113
Maggie Lu,
EEOC Appeal No.01A44114
Alice Lui,
EEOC Appeal No.01A44115
Rexman Lui,
EEOC Appeal No.01A44116
Lan Ly,
EEOC Appeal No.01A44117
Jolly Moi,
EEOC Appeal No.01A44118
Khn-san Myint,
EEOC Appeal No.01A44119
Vivian Posadas,
EEOC Appeal No.01A44120
Clarita Robinson,
EEOC Appeal No.01A44121
Frisco Sacluti,
EEOC Appeal No.01A44122
Gloria Salinda,
EEOC Appeal No.01A44123
Phuong Thai,
EEOC Appeal No.01A44124
Tony Tran,
EEOC Appeal No.01A44125
Nancy Tran,
EEOC Appeal No.01A44126
Ku Tzeng,
EEOC Appeal No.01A44127
Brent Wong,
EEOC Appeal No.01A44128
Emily Wong,
EEOC Appeal No.01A44129
Samuel Woo,
EEOC Appeal No.01A44130
Shirley Xie,
EEOC Appeal No.01A44131
Sandra Xu,
EEOC Appeal No.01A44132
Yaner Xu,
EEOC Appeal No.01A44133
Quinhong Yan,
EEOC Appeal No.01A44134
Lucia Yan,
EEOC Appeal No.01A44135
Hon-In Yang,
EEOC Appeal No.01A44136
Mary Yang,
EEOC Appeal No.01A44137
Seong Yi,
EEOC Appeal No.01A44138
QingNing Yu,
EEOC Appeal No.01A44139
Lily Yuan,
EEOC Appeal No.01A44140
1 Although eighty-three (83) complainants initially filed formal
complaints with the agency, only 61 complainants filed appeals in the
present case, Appeal Nos. 01A41029, 01A44081-01A44140. We note that
complainants' representative asserts in the complainants' statement
on appeal that some complainants were never served with a copy of the
EEOC Administrative Judge decision and/or the final agency decision,
and thus not afforded a right to appeal. Complainants identify only
one individual by name, Branda Li. We note that Ms. Li's name does
not appear on the list of names attached to the Administrative Judge
decision or the FAD. In addition, the record reveals that the names of
twenty-two (22) complainants, appearing in consecutive, alphabetical
order, and clustering twice from Ariston Cabrera thru Kum Cho and
Frank Shih thru Muoi Thai, did not file appeals with the Commission.
While the Commission can identify 22 individuals, this decision will
not address their complaints because the complainants' representative
failed to identify which of these individuals wish to file appeals.
2 The names and appeal numbers of the 61 individual complainants who
timely initiated appeals from the agency's final orders appear at pages
17-19 of this decision. We note that complainants filed each of their
complaints individually and never sought to have their claims certified
as a class complaint.
3 We note that, while complainants also listed Burma, China, Hong Kong,
India, Korea, Philippines, Taiwan, or unspecified as countries of national
origin, complainants did not object to, nor raise arguments on appeal
to the AJ's identifying their national origin as mostly Chinese.
4 As part of a settlement involving applicants of self-declared Hispanic
origin, referred to as the �image lawsuit,� beginning in 1986 and ending
sometime before the 1988 hiring period, only individuals of Hispanic
origin could apply and test for positions as clerk carriers, distribution
clerk machine operators, and mail processors in the Golden Gate District.
Compensable veterans and military personnel were the only exceptions to
the requirements of this settlement. Hearing Transcript, at 79-80, 239.
We note that the terms of this settlement are not before the Commission.
5 The agency significantly reduced its hiring for Letter Sorting
Machine Operators after 1990, and it eventually phased out the machines
completely. Hearing Transcript, at 256-57.
6 Due to this two pool system, when the agency hired FSM qualified
applicants, it hired FSM qualified applicants with lower entry-level
test scores ahead of LSM qualified applicants with higher entry-level
test scores. Conversely, when the agency hired LSM qualified applicants,
it hired LSM qualified applicants with lower entry-level test scores
ahead of FSM qualified applicants with higher entry-level test scores.
7 One complaint, that of complainant Diana Gong, EEOC Appeal No. 01A44088,
included additional allegations of discrimination, including: (1) refusal
to process an injury claim, (2) falsification of an accident report,
and (3) denial of compensation. The record reflects that the parties
stipulated that only hiring claims were at issue, and complainant does
not raise these three other issues on appeal.
8 The AJ first noted that the parties stipulated to, among other
things, the following relevant facts: the sole bases for the claims
were race and/or national origin; only hiring claims were at issue; most
complainants initially became aware of the alleged hiring discrimination
upon the posting of a quarterly seniority roster in October of 1995;
complainants' hiring claims include an allegation of disparate impact
discrimination, but do not include claims related to allegations that
the agency entered into any settlement agreements in bad faith; and the
relevant time period applicable to these complaints was the 1988-1990
time period. AJ Decision, at p. 3.
9 We note that William Su and Branda Li have not filed appeals with
the Commission.
10 Only Branda Li is identified in the statement by name.
11 Although the AJ also dismissed the complaints of complainant William
Su and Branda Li, we will not address those dismissals, as these two
complainants have not filed appeals with the Commission.
12 We note that complainant Cheng's complaint was not dismissed for
untimeliness.
13 Relevant portions of the hearing transcript read as follows:
Agency Counsel: While the witness was on the witness stand, she was
spoken to by a member of this audience who is another complainant,
in a language that was spoken that was not English....
AJ: I agree with the objection. The objection is sustained. I am
going to admonish this audience. I even saw people gesturing with
their hands as to how to answer the question. And that we don't do.
And if there is any indication that it's done, I may have to remove some
people from this hearing. It's the only way we can proceed.
Complainant Cheng: But can I have an interpreter?
AJ: We don't have an interpreter.
Agency counsel: Do you understand what I mean by a call-in notice?
Do you know what a call-in notice is?
Complainant Cheng: That means they send me a letter to come in and
report.
14 The AJ noted that, since the agency relied on some documents that
it produced at the time of the hearing, he granted complainants up to 20
days to analyze the data and submit evidence to rebut the agency's reason.
Id., at 18-19.
15 In its response to complainants' motion for sanctions, agency counsel
expressed their own frustration in not promptly producing the relevant
records, as they too erroneously believed that most of the documents
had been destroyed. AJE: 5, 9. We note that it appears from the record
that some documents were not retained by the agency.