01981124
02-09-1999
Diane Goode, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Diane Goode, )
Appellant, )
)
v. ) Appeal No. 01981124
) Agency No. 95-0456-SSA
Kenneth S. Apfel, ) Hearing No. 340-96-3910X
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
On November 29, 1997, Diane Goode (appellant) timely appealed the final
decision of the Social Security Administration (agency), dated October 24,
1997, which concluded she had 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 her complaint, appellant had alleged that agency officials
discriminated against her on the bases of her race (African-American),
color (black) and sex (female) when she was not given the opportunity
to apply for a Claims Representative position in the Spring of 1995.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
At the time the events at issue occurred, appellant had been employed by
the agency in its Inglewood, California office for eight years, initially
as a Claims Development Clerk, and later as a Service Representative.
She has received several awards for her work. The record further
establishes that appellant does not have a four-year college degree,
but has studied and does speak some Spanish.
In early 1995, the Inglewood Operations Manager (Caucasian female)
received a vacancy announcement for the position of Claims Representative
in the Inglewood office, advertised through an agency program known as
"Advanced Careers with America" (ACWA). The vacancy announcement set
forth two requirements for the position:
[T]he ability to read, write and speak Spanish fluently; and the
successful completion of a full four-year course of study leading to
a bachelor's degree or possession of a bachelor's degree in Business
Administration or similar course to business; or Completion of three
years of interviewing and evaluating; conducting investigations; resolving
discrepancies; and recognizing solutions; planning and organizing work;
and communicating effectively orally and in writing; or Completion of
a combination of the education and experience as described in "A" and
"B" above. [Boldface in the original.]
Rather than posting this vacancy announcement, the Operations Manager,
after consultation with the District Manager (Caucasian male), personally
gave it to only one Service Representative (Caucasian female; hereinafter
referred to as the "selectee"), who had worked for the agency since
July 1994. The vacancy announcement was not given to appellant or to
any other possible candidate. At the time, all ten of the other Service
Representatives in the Inglewood office were non-Caucasian females.
The selectee was the only employee from the Inglewood office to submit
an application for the Claims Representative position, and was selected
for the position by the District Manager. The two agency officials
justified the preference given the selectee by explaining that, despite
the alternative experience provision in vacancy announcement, they chose
to only consider Service Representatives with four-year college degrees
for the ACWA position.<1>
The evidence established that at the time of her selection, the selectee
had a bachelor's degree in Biology, with no courses in Business
Administration. She also had only eight months of interviewing
experience, far short of the three years called for in the vacancy
announcement. Testimony also established that the District Manager
was aware that the selectee was not fluent in Spanish at the time of
her selection.
In June 1995, appellant filed a formal EEO complaint with the agency,
alleging that the agency had discriminated against her as referenced
above. The agency accepted the complaint and conducted investigations.
At the conclusion of the investigations, appellant requested an
administrative hearing before an Equal Employment Opportunity Commission
(EEOC) administrative judge (AJ). Appellant's complaint was consolidated
for a single hearing with the complaints of nine other non-Caucasian
female Service Representatives from the Inglewood office who were raising
the same claim about this selection.<2>
On August 14, 1997, following a two-day hearing, the AJ issued a decision
finding appellant had met her burden of proving she had been discriminated
against by the agency on the bases of her race and color.<3> In reaching
this conclusion, the AJ found, as a matter of fact, that the selectee
did not meet the requirements of the position in question because she
was neither fluent in Spanish nor did she possess either a bachelor's
degree in Business Administration or the work experience required in lieu
thereof. Therefore, based on this finding and a number of credibility
findings, the AJ concluded that the reasons offered by the agency for its
selection were a pretext for race and color discrimination. In addition,
the AJ found that agency management's unilateral decision to only consider
candidates with a bachelor's degree, and not consider the experience
allowed as an equivalent, to "be discriminatory in its impact on the basis
of race and color" because of the other ten Service Representatives in
the Inglewood office (all non-Caucasian) only one had a bachelor's degree.
Despite his finding that discrimination tainted the selection process at
issue, the AJ further found that the evidence established that appellant
would not have been selected for the position in question even absent
discrimination because the evidence did not establish that she was
fluent in Spanish as required by the vacancy announcement. Accordingly,
the AJ concluded he could not award appellant a retroactive promotion
to the position, backpay or compensatory damages. However, under the
authority of 42 U.S.C. �2000e-5(g)(2)(B)(ii), the AJ recommended the
following declaratory and injunctive relief:
Appellant should be given the opportunity to apply for any and all
promotions in her agency;
Appellant should be given copies of all vacancy announcements for
advancement from her job as a Service Representative;
All vacancy announcements should be posted in conspicuous places
accessible to all Service Representatives in the Inglewood office;
Appellant should be offered training and assistance in responding to
vacancy announcements;
The agency should be enjoined from ever again engaging in the concealment
of vacancy announcements for career positions, whatever their source,
and should be ordered to distribute and post such announcements whenever
the issuing authority permits it; and
The Inglewood office should be directed to give weight to experience
that is called for in any job announcement and not unilaterally ignore
its value in favor of formal education.
On October 24, 1997, the agency issued its final decision, adopting the
AJ's recommended finding of race and color discrimination. However, the
agency rejected to recommended relief in its entirety because, "[s]uch
relief could be interpreted as requiring elimination of the Advanced
Careers With America (ACWA) program." It is from this decision that
appellant now appeals. On appeal, appellant requests that in addition to
ordering all the remedies recommended by the AJ, that appellant also be
granted priority consideration for future Claims Representative positions,
and be awarded backpay, as well as compensatory damages for the mental
anguish she suffered as a result of the discriminatory conduct of the
agency.<4>
When, as here, discrimination is found, the agency must provide appellant
with a remedy that constitutes full, make-whole relief to restore her to
the position she would have occupied absent the discrimination. Albemarle
Paper Co. v. Moody, 422 U.S. 405 (1975); Franks v. Bowman Transportation
Co., 424 U.S. 747 (1976); Adesanya v. United States Postal Service,
EEOC Appeal No. 01933395 (July 21, 1994). After careful consideration
of the record and the arguments of both parties on appeal, the Commission
discerns no basis to disturb the AJ's finding that the evidence of record
establishes that appellant would not have been selected for the position
in question even absent the agency's discriminatory conduct. Therefore,
placement in the position (or priority consideration) with backpay is not
an available remedy in this case. See Mitchell et al. v. United States
Department of Agriculture, EEOC Petition No. 04970021 (December 4, 1997).
However, the Commission is unpersuaded by the agency's contention that the
declaratory and injunctive relief recommended by the AJ was inappropriate
because it could be interpreted as requiring the elimination of the
ACWA program. The relief proposed by the AJ simply provides agency
employees with access to vacancy announcements and with the opportunity
to apply for promotional opportunities. No interpretation of the AJ's
order would require the agency to select an employee who did not meet the
qualifications of the position in question. With regard to the admonition
to consider experience when appropriate, the order is clear that this
should only occur when the vacancy announcement, whether issued under
the ACWA program or not, specifically provides for the consideration
of experience in lieu of educational requirements. Again, there is no
requirement that the agency select the employee based on experience alone.
Rather, the order requires that the agency not systematically exclude
such an employee from consideration. For these reasons, the Commission
will reinstate the relief recommended by the AJ in this case.
The final issue raised by appellant on appeal is the failure of the
agency and the AJ to award her compensatory damages. The Commission finds
erroneous the denial of compensatory damages based on the characterization
of this matter as a mixed motive case. Mixed motive cases involve both
a lawful and unlawful motive operative in the employer's employment
decision. Here, there is no evidence to show such a mixed motive.
The AJ found that the selection process was discriminatory because of
the failure to provide appellant and other non-Caucasian employees with
the opportunity to apply for the position in question. The AJ also
found that the selectee did not meet the requirements for the position.
Thus, the agency is unable to show any lawful motive operative in
the selection process (such as the selectee being the best qualified
candidate). Consequently, the Commission finds that appellant is
entitled to consideration of her compensatory damages claim. See Harris
v. United States Department of Agriculture, EEOC Appeal No. 01966746
(December 11, 1998). The Commission will, therefore, order the agency
to conduct a supplemental investigation into appellant's entitlement to
compensatory damages.
Accordingly, the relief granted in the agency's final decision is MODIFIED
as provided in the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
Appellant shall be given the opportunity to apply for any and all
promotions in her agency;
Appellant shall be given copies of all vacancy announcements for
advancement from her job as a Service Representative;
All vacancy announcements shall be posted in conspicuous places
accessible to all Service Representatives in the Inglewood office;
Appellant shall be offered training and assistance in responding to
vacancy announcements;
The agency is enjoined from ever again engaging in the concealment
of vacancy announcements for career positions, whatever their source,
and is ordered to distribute and post such announcements whenever the
issuing authority permits it;
The Inglewood office is directed to give weight to experience that
is called for in any job announcement and not unilaterally ignore its
value in favor of formal education; and
The agency shall post at its Inglewood, California, 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 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.
The agency shall provide immediate training to the agency officials
involved in this matter concerning their obligations and responsibilities
under the Federal employment discrimination laws.
The agency shall conduct a supplemental investigation pertaining to
appellant's entitlement to compensatory damages incurred as result
of the agency's discriminatory actions. See Feris v. Environmental
Protection Agency, EEOC Appeal No. 01934828 (August 10, 1995), request
to reopen denied, EEOC Request No. 05950936 (July 19, 1996); Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994);
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993). See also, Cobey Turner v. Department of the Interior, EEOC
Appeal Nos. 01956390 and 01960518 (April 27, 1998); Jackson v. United
States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992),
request for reconsideration denied, EEOC Request No. 05930306 (February
1, 1993). The agency shall afford appellant sixty (60) days to submit
additional evidence in support of her claim for compensatory damages.
Within thirty (30) days of its receipt of appellant's evidence, the
agency shall issue a final decision determining appellant's entitlement
to compensatory damages, together with appropriate appeal rights.
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� (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. � l6l4.604(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 an 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 EIGHTY (180)
CALENDARS 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:
February 9, 1999
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated_____________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Inglewood, California, office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Inglewood, California, office has been found to have discriminated
against the individual affected by the Commission's finding on the
bases of her race and color when she was not given the opportunity
to apply for a Claims Representative position. The Commission has
ordered that appellant be given the opportunity to apply for all future
vacancies, that all vacancy announcements be posted and not concealed
from employees, and that experience not be unilaterally ignored in
favor of formal education when permitted by a vacancy announcement.
The Inglewood, California, office will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The Inglewood, California, office will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
____________________
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 However, the record establishes that they also did not give a copy of
the vacancy announcement to another Service Representative (black female)
who possessed a four-year degree in Business Administration.
2 All ten complainants have also filed appeals with this Commission.
See, EEOC Appeals Nos. 01981122 through 01981131.
3 The AJ found no discrimination on the basis of sex because the selectee
was also female.
4 On appeal, appellant also asserted that the agency failed to issue its
final decision in a timely manner, pursuant to 29 C.F.R. �1614.109(g),
and the AJ's decision became final. However, the record does not clearly
establish this claim.