01981174
03-12-1999
Curtis Johnson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Curtis Johnson, )
Appellant, )
)
v. ) Appeal No. 01981174
) Agency No. 1-J-609-1001-96
William J. Henderson, ) Hearing No. 210-97-6195X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 19, 1997, Curtis Johnson (hereinafter referred to as
appellant) timely appealed the agency's final decision, dated November 13,
1997, concluding he had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. In his complaint, appellant alleged that agency officials
discriminated against him on the bases of his race (black) and sex
(male) when he was not selected for one of the Supervisor Distribution
Operations positions, EAS-16, under vacancy announcements 94-108 and
94-109. This appeal is accepted in accordance with the provisions of
EEOC Order No. 960.001.
The record establishes that appellant was employed by the agency as a
PSDS Technician, PS-6, at the agency's Forest Park, Illinois facility.
On November 16, 1994, appellant applied for a Supervisor Distribution
Operations position under vacancy announcements 94-108 and 94-109.
A review committee evaluated approximately 103 applications including
that of appellant. Appellant was among approximately 57 applicants that
were interviewed by the review committee. Appellant was also among 29
applicants that were recommended as best qualified for the positions.
A selection committee composed of three individuals reviewed the
applications of the 29 best qualified applicants and submitted selection
recommendations to the Plant Manager. The three member committee was
composed of a black female, a black male, and a white male. Eleven
individuals, not including appellant, were selected for the subject
positions. The selectees included 4 black males, 2 white males, and 5
black females. The 18 best qualified candidates who were not recommended
for selection included 9 black males, one white male, and 8 black females.
The record reveals that appellant filed a formal EEO complaint with the
agency on January 30, 1996, alleging that the agency had discriminated
against him as referenced above. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant requested an administrative hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ).
On September 30, 1997, following a hearing at which three witnesses
testified, the AJ issued a decision finding that the agency had
discriminated against appellant on the bases of his race and sex when
he was not selected for one of the subject positions. In reaching this
decision, the AJ found that the agency failed to meet its burden to
articulate a legitimate, nondiscriminatory reason for not forwarding
appellant's name to the Plant Manager for final consideration,
and alternatively, that any reasons are not worthy of credence.
The AJ applied an adverse inference against the agency because two
of the three individuals on the selection committee failed to appear
as witnesses. The AJ noted that the investigative affidavits of both
of these individuals did not provide substantive detail with regard to
their own deliberative process in choosing among the 29 best qualified
candidates nor did they explain how the selection committee reached
a consensus on the candidates that were considered most qualified for
the subject position. Further, the AJ noted that both witnesses that
did not appear had been approved well in advance as witnesses. The AJ
concluded that the ambiguity surrounding these selection committee
members' deliberative process was directly attributable to the agency's
failure to provide these witnesses at the hearing.
With regard to the one selection committee member that did testify at
the hearing, the AJ noted that he testified that he did not consider
appellant to be among the most qualified candidates. At the hearing,
this committee member testified that he did not include appellant's name
on his list of recommended candidates because the knowledge, skills,
and abilities set forth by appellant on his job application did not
demonstrate his ability as a supervisor. Rather, he explained that
such knowledge, skills, and abilities were more geared towards a craft
employee in the position of PSDS, which is a timekeeping office.
The AJ also found that ample evidence exists, aside from the
discrediting of the agency's articulated reasons, to support a finding
of discrimination. According to the AJ, even taking into account the
vague selection criteria cited by the selection committee members,
appellant was at least highly competitive with three of the selectees.
In a final decision dated November 13, 1997, the agency rejected
the findings and conclusions of the AJ, and entered a finding of no
discrimination. It is from this decision that appellant now appeals.
As an initial matter, we will address the propriety of the adverse
inference drawn by the AJ against the agency. Pursuant to 29
C.F.R. �1614.109(d), if a party fails �without good cause shown
to respond fully and in timely fashion to requests for documents,
records, comparative data, statistics, affidavits, or the attendance
of witness(es),� an AJ may, in appropriate circumstances, draw an
adverse inference that the requested information or testimony would have
reflected unfavorably on the party refusing to provide the information.
In this case, having considered the evidence of record, we find that
the AJ acted properly in drawing an adverse inference.
As noted, the agency was aware well in advance that both of the
individuals at issue were expected to testify. The agency had requested
that the hearing be reconvened to allow for the appearance of the two
requested witnesses at another time. The AJ was not informed by the
agency until the day of the hearing that these witnesses would not be
available. We find that sufficient cause existed for the AJ to invoke
an adverse inference against the agency.
After a careful review of the record in its entirety, including the
statements submitted on appeal, we find that the AJ's recommended decision
set forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws.
As the AJ correctly noted, appellant's complaint constitutes a claim of
disparate treatment which is properly analyzed under the three-tiered
analytical framework outlined in McDonnell Douglas v. Green, 411 U.S. 792
(1973). See also, Cooper v. Federal Reserve Bank of Richmond, 467
U.S. 867 (1984); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-256 (1981). Applying this legal standard,
the AJ properly concluded that appellant established a prima facie case of
race and sex discrimination. Moreover, we find that the AJ was correct
in further finding that the agency failed to produce a legitimate,
nondiscriminatory reason for its decision to not select appellant for
the subject position. The failure of two selection committee members
to testify at the hearing in conjunction with their cursory affidavits
supports the AJ's decision. Further, we agree with the AJ that appellant
proved, by a preponderance of the evidence, that the agency's articulated
reasons for its actions in this matter lacked credibility and that its
actions were more likely motivated by discrimination. Nothing proffered
by the agency in its final decision or on appeal differs significantly
from the arguments raised before, and given full consideration by the AJ.
Accordingly, it is the decision of the the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of discrimination. In order to remedy appellant for its
discriminatory actions, the agency shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial actions:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to offer appellant a position as a
Supervisor, Distribution Operations, EAS-16, effective August 1995,
and that he be given all benefits he would have received had he been
selected in or about August 1995, including but not limited to back pay,
including interest.
(B) The agency shall post at the Forest Park, Illinois Post Office
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 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.
(C) 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 evidence that the corrective action
has been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations