07A00014
04-03-2001
Eileen J. Shaw, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Eileen J. Shaw v. Department of the Treasury
07A00014
04-03-01
.
Eileen J. Shaw,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 07A00014
Agency No. 97-2275
Hearing No. 270-98-9055X
DECISION
Following its January 24, 2000 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the bases of her race and age. For the following
reasons, the Commission REVERSES the agency's final order.
Complainant, an employee of the agency's U.S. Customs Service, Field
Operations, Gulf Customs Management Center, New Orleans, Louisiana,
filed a formal EEO complaint with the agency in July 1997, alleging that
she was discriminated against because of her race (Black) and her age
(DOB: 1/5/49) in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Specifically, her complaint concerned her non-selection for the position
of Process Manager, GS-301-14. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and requested
a hearing before an AJ.
The record indicates that complainant was permanently assigned to
the position of Senior Process Specialist, GS-301-13. On January 3,
1997, her supervisor, B-1(White, DOB: 1/29/45) was selected to a GS-15
position as the Port Director, New Orleans. Following his selection,
B-1 informed complainant that she was going to serve in his former
position in an acting capacity and that she needed to �get her paperwork
together� if she wanted to apply for the position. From January 5, 1997
to May 11, 1997, complainant was detailed to the position of Process
Manager, GS-301-14. On February 4, 1997, the agency issued a vacancy
announcement. Six candidates, including complainant, were referred for
competitive selection. The other candidates were white and ranged in
age from 37 to 49.
A-2 (White, DOB: 10/2/34), Director of the Gulf Customs Management Center,
was the selecting official. He interviewed the candidates on April
24, 1997. Thereafter, A-2 spoke with the Port Directors. B-1 initially
recommended complainant. B-2, Port Director, Mobile, Alabama, recommended
complainant. B-3, Port Director, Pascagoula, Mississippi, felt he could
work with either complainant or C-1(White, 37). B-4, Port Director,
Memphis, Tennessee, recommended the complainant. About a week after
his initial recommendation of complainant, B-1 changed his mind and
recommended C-1. On May 2, 1997, A-2 selected C-1. A-2 wrote:
[C-1] has proven to be a highly competent employee and will bring a
fresh perspective to this position. Her ability to analyze difficult
situations and make objective recommendations has been demonstrated
through the years she has worked under my supervision and I believe that
to be much to her credit.
During the hearing, A-2 testified that his first choice for the position
was C-2 (Hispanic, DOB: 8/14/54), a GS-14, Process Manager in Puerto Rico.
C-2 declined the job because the agency was unable to offer her husband
a position. Afterward, A-2 focused on complainant and C-1. According
to A-2, complainant, after she received a temporary promotion to the
position,�performed admirably in writing reports and in facilitating
meetings, [but] she did not seize the opportunity to present to me how she
might draw the Port Directors into contributing to improving the Service's
processes, all critical elements of the position.� He also maintained
that complainant did not solicit his philosophy on managing the position
or find out if there were projects that she could accomplish while she
was acting. A-2 testified that complainant �did little to communicate any
of her ideas that would have led me to the conclusion that her approach
to managing the position would be creative and enthusiastic.� Finally,
he stated that his intuition told him that C-1 could do the job and that
he �put alot [sic] of weight� on B-1's recommendation.
In explaining why he changed his mind about recommending complainant
for the position, B-1 testified that, at a Port Director's meeting,
he raised issues concerning the performance measures that the Gulf
Customs Management Center was required to develop. According to B-1,
complainant seemed indifferent. C-1, however, impressed B-1 when he
participated in meetings with her because she took more initiative in
managing her assigned responsibilities.
Complainant maintained that she was more qualified than C-1. She noted
that (1) she had worked for the agency for 17 years compared to seven
years for C-1; and (2) she had served in the position from January to
May 1997. She also indicated that she developed a three and a half
day training program for inspectors from five states. Because of her
work performance, complainant indicated that she received awards and
recognition. A-2, during the hearing, admitted that complainant's detail
was �pretty heavy,� and that she had little time to �self-start� projects.
Despite difficult assignments, A-2 stated that complainant had done a good
job. With respect to B-1's testimony that he changed his recommendation
with respect to complainant because of her lack of interest concerning
performance measures, complainant indicated that her co-worker, D-1,
was in charge of this area. Moreover, A-2 testified that no one in the
country knew much about the performance measures at that time.
The AJ found that complainant established a prima facie case of race
and age discrimination. She also found that the agency articulated
legitimate, nondiscriminatory reasons for its actions, but that
complainant was able to establish that more likely than not, the reasons
provided by the agency were a pretext for discrimination based on race and
age. According to the AJ, after observing the demeanor of B-1 and A-2 as
they testified, she was not persuaded by them. The AJ noted the fact that
three of the four Port Directors that A-2 consulted before he made his
selection decision agreed that the complainant would be the best person
for the job. The fourth Director thought that complainant and C-1 were
equally qualified. Given the evidence presented, the AJ found that the
reasons for preferring C-1 over complainant were �simply not credible.�
According to the AJ, complainant �had worked in the area of the vacancy,
had acted informally in the position, and the agency had detailed her
to the position for several months after the vacancy developed.�
On appeal, the agency argues that the AJ erred in finding pretext
because the complainant failed to establish that she was clearly more
qualified than the selectee. 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).
After a careful review of the record, we discern no basis to disturb the
AJ's finding of discrimination. Moreover, we find that the findings of
fact are supported by substantial evidence, and that the AJ correctly
applied the appropriate regulations, policies, and laws. Contrary to
the agency's position, we note that, in a nonselection case, pretext
may be demonstrated in a number of ways, not merely by showing that
complainant's qualifications were observably superior to those of the
selectee. In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the
Supreme Court held that a fact finder is not required, as a matter of law,
to find discrimination whenever it finds that the employer's explanation
for its actions is not credible. Id. at 519. The Court, however, made
clear that a fact finder may find discrimination in such circumstances.
Id. at 524. The critical factor is that a fact finder must be persuaded
by the complainant that it was discrimination that motivated the employer
to act as it did. Id.<1> Therefore, after a careful review of the
record, including arguments and evidence not specifically discussed
in this decision, the Commission REVERSES the agency's final order and
REMANDS the matter to the agency to take corrective action in accordance
with this decision and the ORDER below.
ORDER
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall retroactively promote complainant to the position
of Process Manager, GS-301-14, effective June 8, 1997. Complainant shall
be provided full seniority and appropriate pay adjustments for any
step increases she would have received from June 8, 1997 to date, back
pay, interest, and all other benefits pursuant to 29 C.F.R. � 1614.501.
Complainant shall cooperate in the agency's efforts to compute the amount
of back pay owed and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amounts owed
by the agency, the agency shall issue a check to the complainant for
the undisputed amount within thirty (30) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amounts in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency is directed to conduct EEO training for A-2. This training
shall address management responsibilities with respect to eliminating
discrimination in the Federal workplace and all other supervisory and
managerial responsibilities under equal employment law.
3. The issue of compensatory damages, for the Title VII violation, is
REMANDED to the Hearings Unit of the EEOC, New Orleans District Office.
The agency is directed to submit a copy of the complaint file to the EEOC
Hearings Unit within fifteen (15) calendar days of the date this decision
becomes final. The agency shall provide written notification to the
Compliance Officer at the address set forth below that the complaint file
has been transmitted to the Hearings Unit. Thereafter, the Administrative
Judge must be assigned in an expeditious manner to further process the
issue of compensatory damages in accordance with the regulations.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
POSTING ORDER
The agency is ORDERED to post at its U.S. Customs Service, Field
Operations, Gulf Customs Management Center, New Orleans, Louisiana
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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
___04-03-01___________________________
Date
1We also note that the credibility determinations of the AJ are entitled
to deference due to the judge's first-hand knowledge through personal
observation of the demeanor and conduct of the witness at the hearing.
Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996). The Commission will generally not disturb the
credibility determination of an AJ. Id.