01983376
03-19-1999
Gerald L. Flunder, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Gerald L. Flunder, )
Appellant, )
)
v. ) Appeal No. 01983376
) Agency Nos. 4E-852-1010-95,
William J. Henderson, ) 4E-852-1175-96
Postmaster General, ) Hearing Nos. 350-96-8059X,
United States Postal Service, ) 350-96-8273X
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On March 24, 1998, Gerald L. Flunder (appellant) timely appealed the
final decision of the United States Postal Service (agency), dated March
9, 1998, which concluded that 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., and the Age Discrimination in Employment
Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. In Agency Case
No. 4E-852-1010-95, appellant had alleged that officials at the agency's
Arrowhead Station in Glendale, Arizona, discriminated against him on
the bases of his race/color (Black), sex (male) and age (DOB: 10-07-60)
when he was not hired as a Rural Carrier Associate (RCA) in August 1994.
In Agency Case No. 4E-852-1175-96, appellant alleged that he had been
unlawfully retaliated against for engaging in prior EEO activity when
he was terminated as a RCA at the Chandler, Arizona, Post Office on May
7, 1996. This appeal is accepted in accordance with the provisions of
EEOC Order No. 960.001.
The evidence of record establishes that, in 1994, appellant was among
fourteen applicants for an RCA position at the Arrowhead Station who
were selected from a hiring register to be interviewed. Following the
interviews, nine candidates (4 male/5 female; 7 Caucasian/2 Native
American) were selected for the positions. Appellant was not among
those selected. On November 28, 1994, appellant filed a formal EEO
complaint with the agency, alleging that the agency had discriminated
against him as referenced above with respect to his nonselection. The
agency accepted the complaint and conducted an investigation.
While this complaint was pending, appellant was hired as an RCA at
the Chandler, Arizona, Post Office in March 1996. By letter dated May
7, 1996, appellant was terminated from this position after a routine
background check indicated that he had submitted false information on
his employment application. On August 13, 1996, appellant filed his
second EEO complaint alleging unlawful retaliation as referenced above.
The agency also accepted this complaint and conducted an investigation.
At the conclusion of the investigation into each complaint, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ). The hearings were held on
the complaints on July 21, 1997, and December 11, 1997, respectively.
On August 15, 1997, the AJ issued a decision from the bench finding
appellant had been discriminated against on the bases of his race/color
and sex when he was not hired for the RCA position at the Arrowhead
Station in August 1994. With respect to appellant's claim of age
discrimination, the AJ concluded that appellant was under forty years of
age and, therefore, outside the protections of the ADEA. The AJ held her
decision on the appropriate remedies to recommend in abeyance until she
had issued a decision on appellant's 1996 termination case. On December
31, 1997, the AJ concluded that there was insufficient evidence of
retaliation with respect to appellant's termination in May 1996 from his
Rural Carrier position at the Chandler, Arizona, Post Office. At the
same time, she recommended a series of actions for the agency to take to
remedy appellant for its discriminatory actions in the 1994 hiring issue.
In reaching the finding of race/color and sex discrimination with respect
to the hiring issue, the AJ noted that although the selecting official
testified that the selectees were generally chosen because they did better
in the interview process than appellant, he could not remember two of the
female selectees (both Caucasian) and, therefore, could not articulate why
they were selected as opposed to appellant. As a result, the AJ concluded
that the agency failed to meet its burden of articulating legitimate,
nondiscriminatory reasons for its actions with respect to these two
selectees with sufficient clarity and specificity to adequately rebut
the inference of discrimination raised by appellant's prima facie case.
On March 9, 1998, the agency issued its final decision, rejecting the AJ's
recommended finding of race/color and sex discrimination with respect
to the 1994 hiring complaint. It is from this decision that appellant
now appeals.<1>
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis
to disturb the AJ's finding of race/color and sex discrimination with
respect to the agency's decision not to select appellant for an RCA
position in 1994. Based on its review of the record, the Commission
concurs with the AJ's finding that the agency failed to successfully
rebut the inference of discrimination raised by appellant's prima facie
case because its explanation for why two Caucasian female candidates were
selected rather than appellant was so lacking in clarity and specificity
that it deprived appellant of a full and fair opportunity to demonstrate
that the proffered explanation was a pretext for discrimination.
See Brooks v. United States Postal Service, EEOC Request No. 05930625
(May 19, 1994); Parker v. United States Postal Service, EEOC Request
No. 05900110 (April 30, 1990). Nothing proffered by 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 Equal Employment Opportunity
Commission to REVERSE that portion of the agency's final decision
which rejected the AJ's finding of race/color and sex discrimination
with respect to appellant's nonselection for an RCA position in 1994.
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 action:
(A) Within sixty (60) calendar days of the date this decision
becomes final, the agency is directed to award appellant back pay
and benefits, with interest, from the date he should have been
hired absent the agency's discriminatory actions (August 26, 1994),
until the date he was actually hired by the agency into an equivalent
position (March 16, 1996). The agency shall determine the appropriate
amount of back pay, interest and other benefits due appellant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. Interim earning may
be deducted from the back pay award. The appellant shall cooperate in
the agency's efforts to compute the amount of back pay and benefits
due, and shall provide all relevant information requested by the
agency. If there is a dispute regarding the exact amount of back pay
and/or benefits, the agency shall issue a check to the appellant
for the undisputed amount within sixty (60) calendar days of the
date the agency determines the amount it believes to be due. The
appellant may petition for enforcement or clarification of the amount
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."
(B) Training shall be provided to the agency officials responsible
for the agency's actions in this matter on the obligations and duties
imposed by Title VII.
(C) The agency shall post at the Arrowhead Station, Glendale, Arizona,
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.
(D) 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 supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including 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. � 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:
March 19, 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 Arrowhead Station, Glendale, Arizona, supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Arrowhead Station, Glendale, Arizona, has been found to have
discriminated against the individual affected by the Commission's
finding on the basis of his race/color (Black) and sex (mail) when
he was not selected for the position of Rural Carrier Associate.
The Commission has ordered that this individual be awarded back pay,
with interest, retroactive to the date he should have been hired
absent discrimination. The Arrowhead Station, Glendale, Arizona,
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 Arrowhead Station, Glendale, Arizona, 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: _________________
1 The Commission notes that, on appeal, appellant has not challenged
the AJ's holding that he is not covered by the ADEA with respect to
the hiring issue and was not unlawfully retaliated against with respect
to the termination issue. Therefore, the Commission will affirm these
conclusions without further comment.