0120110390
03-31-2011
Mary S. Goblirsch-Erickson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Mary S. Goblirsch-Erickson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120110390
Hearing No. 560-2009-00096X
Agency No. 1E-681-0029-08
DECISION
On October 13, 2010, Complainant filed an appeal from the Agency's
September 8, 2010, final decision concerning her equal employment
opportunity (EEO) complaint alleging 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission REVERSES the Agency's final
decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that
Complainant had not been discriminated against on the bases of her race,
sex, age, and in reprisal for prior EEO activity when she was not selected
for a position for which she had applied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Operations Support Specialist, EAS-17, at the Agency's Processing
& Distribution Center (P&DC) in Omaha, Nebraska. On September 9, 2008,
Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Caucasian), sex (female), age (51),
and in reprisal for prior protected EEO activity arising under Title
VII and the ADEA when, on June 10, 2008, she was not selected for the
position of Operations Support Specialist, EAS-18.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing but subsequently withdrew her request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.
In its final decision, the Agency found that Complainant had applied for
a position at the Omaha P&DC as an Operations Support Specialist, EAS-18.
The selecting official was the Manager, In-Plant Support (White, male,
older than Complainant), who also interviewed the seven applicants
for the position. All seven applicants were White. On June 9, 2008,
Complainant was sent a letter from the selecting official which stated
that another candidate had been selected (the selectee - White, male, 46,
no prior EEO activity) based on the selecting official's "judgment of who
best meets the position requirements." The Agency noted Complainant's
belief that the selectee was not the best qualified for the position,
that Complainant has been in In-Plant Support for 12 years, has been
performing many of the duties of the position during that time, had been
detailed into the position for 90 days, and that she had twice previously
not been selected for this position by the same selecting official.
The Agency also found that the selecting official had scored each
applicant following the interviews and that the scores ranged from a
high of 40 (the selectee) to a low of 19; Complainant's score was 26.
Each applicant was asked 13 questions, 12 of which were graded, which
were scored on a scale of 0 to 5. The selecting official testified that
the selectee was, in his estimation, the most qualified and the one who
showed the highest potential to be the most successful in the position.
The Agency concluded that Complainant had not established her prima
facie cases of race, sex, age or reprisal discrimination. It found that
Complainant had shown that she was of the protected classes, and had
applied, was qualified for, but was not selected for the position. But it
found that she had not shown that circumstances existed which, if left
unexplained, would support an inference of discrimination. The Agency
found that Complainant had not shown that age was a consideration or made
a difference in the outcome of the selection process, and noted that the
selecting official is older than Complainant. The Agency also found that
Complainant's prior EEO activity was too remote in time (December 2006)
to give rise to an inference of reprisal discrimination.
Assuming however, that Complainant had established her prima facie cases
of discrimination, the Agency found that it had articulated legitimate,
nondiscriminatory reasons for not selecting Complainant for the position.
The selecting official stated that he had chosen the candidate he
felt best qualified and most likely to be successful in the position.
The Agency concluded that Complainant had not shown this reason for her
non-selection to be pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions in support of her appeal.
The Agency submitted a brief in opposition to Complainant's appeal in
which it argued that Complainant had not established prima facie cases
of race, sex, age or reprisal discrimination, and urged the Commission
to affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard
of review "requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker," and that EEOC "review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804, n. 14. 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). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie of race or sex discrimination in the case of
a non-selection, a complainant must show that she belongs to the classes
claimed, that she applied for the subject position, was qualified but
was rejected, and that the selectee was not of her protected classes.
Complainant does belong to protected classes of race and sex, she was
qualified for the position, applied and was not selected. We find that
Complainant has established a prima facie case of sex discrimination
in that the selectee was male. However, Complainant's claim of race
discrimination fails as Complainant, the selectee, the remaining
applicants, and the selecting official were all of the same race,
thereby defeating any inference of race discrimination.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.,
supra). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a
prima facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).
We find that Complainant had engaged in prior protected EEO activity,
in that she had previously initiated the EEO process in November 2006
regarding her non-selection for an Operations Support Specialist, EAS-18,
position. The selecting official was the same in that instance as in
the instant case. The record shows that Complainant settled the case at
the informal level in December 2006. Therefore, the selecting official
was aware of Complainant's prior EEO activity. Complainant subsequently
was not chosen for the subject position by the same selecting official.
However, the passage in time of a year and a half may make the connection
between the previous EEO case and this non-selection too tenuous in
the absence of any other evidence of intent to retaliate on the part of
the selecting official. We therefore conclude that Complainant has not
shown a prima facie case of reprisal discrimination.
The Commission has long held that the rules laid down by the U.S. Supreme
Court in McDonnell Douglas Corp. in proving a Title VII claim are also
applicable in proving an age discrimination claim. Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); Kentroh v. Frontier Airlines. Inc.,
585 F.2d 96 (10th Cir. 1978); Cova v. Coca-Cola Bottling Co., 574 F.2d
958 (8th Cir. 1978). In Gross v. FBL Financial Services. Inc., 129
S. Ct. 2343 (2009), the Supreme Court reviewed the statutory language of
the ADEA's prohibition of discrimination "because of" age, set forth in 29
U.S.C. � 623(a)(1), which applies to private sector employers. Based on
this language, the Court concluded that for a plaintiff to ultimately
prevail in a private sector ADEA claim, he or she must demonstrate that
"but for" age the alleged discriminatory employment action would not
have occurred. The Court then concluded that this "but for" causation
requirement precludes application of a mixed motive analysis to claims
arising under 29 U.S.C. � 623(a)(1).
However, another section of the ADEA applies to the prohibition of
age discrimination in the federal sector. See 29 U.S.C. � 633a(a)
(all personnel actions in federal employment "shall be made free from
any discrimination based on age"). Contrary to the holding in Gross,
Fuller v. Gates, Secretary of Defense concluded that Gross applied
to private employment, and not employment by the federal government.
See Fuller v. Gates, Secretary of Defense, 2010 WL 774965 (E.D. Tx. March
1, 2010). The court in Fuller found that the different language in the
two sections of the ADEA demonstrated that Congress intended different
meanings. Id. Further, the Fuller court determined that based on its
plain meaning, "free from any" must be construed as being broader than
"because of," such that the "mixed motive analysis" continues to apply
in age discrimination claims against the federal government. Id. We find
that Complainant has not shown that age played any part in the reason for
her non-selection. The selectee was younger than Complainant by only 5
years, and the selecting official was noted to be older than Complainant
(exact age not specified in record).
We further find, however, that Complainant has raised circumstances which,
left unexplained, would support an inference of sex discrimination. She
testified in her affidavit that she had twice previously applied for this
same position, and twice not been selected by the same selecting official.
She noted that males were chosen in each of the other two instances.
The record shows that the two previous selectees were males, but that
one was black, while the other was of the same race as Complainant; one
was 53 at the time of his selection and one was 39; and one had prior
EEO activity, while the other did not. Complainant testified in her
affidavit that the selectee in this case and one of the previous selectees
were each incapable of creating and performing a "sort program" which was
required in the position, and that she had to show them how to do it.
Complainant also testified that she had been performing EAS-18 level
functions for some time but was not being compensated accordingly.
The Agency put forth the testimony of the selecting official to articulate
a legitimate, nondiscriminatory reason for Complainant's non-selection.
In his affidavit, the selecting official stated that the selectee "was
the most qualified applicant and demonstrated the highest potential to
be successful in the position. He possessed skills above and beyond the
skills of the other applicants."
However, we find that the selecting official did not elaborate in what way
the selectee was more qualified, or demonstrated greater potential than
Complainant. He failed to submit any documentary evidence to support his
statement, other than a scoring matrix created after the interview process
which gave numerical scores for each question asked of the applicants, and
a list of the questions. The record shows that the investigator asked the
selecting official for "each applicants' responses to the questions posed
to them during their interview." The selecting official replied, "I do
not have a copy of each applicants' responses to the interview questions."
Neither did the selecting official supply any explanation of what each
number value represented in relation to the interview question.
Under 29 C.F.R. � 1614.108(c)(1) "The complainant, the agency, and
any employee of a Federal agency shall produce such documentary and
testimonial evidence as the investigator deems necessary." It is
standard practice, when conducting an investigation on a complaint
of discrimination alleging a non-selection, to collect evidence which
would allow the fact finder to compare the ratings made by the selecting
official of those applicants who received an interview. The Commission
has previously found that when an Agency fails to support its legitimate,
nondiscriminatory reason with documentary evidence which existed but
which was not produced during the investigation, or not preserved once
the complaint was filed, the Agency has not met its burden under McDonnell
Douglas. See Jenkins v. U.S. Postal Service, EEOC Appeal No. 0120064579
(July 8, 2008).
We therefore, conclude that the Agency has not met its burden of
production in response to Complainant's showing of her prima facie case
of sex discrimination. We consequently find that Complainant is entitled
to a finding of discrimination on the basis of sex.
CONCLUSION
Based on a thorough review of the record and in the absence of any
contentions on appeal, we REVERSE the Agency's final decision and enter
a finding of discrimination on the basis of sex in favor of Complainant.
ORDER
Within sixty (60) days of the date this decision becomes final, the
Agency shall:
1) The Agency shall place Complainant in an Operations Support Specialist,
EAS-18, position at the Omaha, Nebraska P & DC.
2) The Agency shall conduct a supplemental investigation to determine
whether Complainant is entitled to compensatory damages as a result of the
non-selection, and shall afford Complainant an opportunity to establish
a causal relationship between the non-selection and any pecuniary or
non-pecuniary losses. Complainant shall cooperate in the Agency's
efforts to compute the amount of compensatory damages she is entitled
to for that portion of the discrimination which resulted from her sex,
and shall provide all relevant information requested by the Agency.
The Agency shall issue a new agency decision awarding compensatory
damages to Complainant within sixty (60) days of the date this decision
becomes final.
3) The agency shall provide the selecting official with eight (8)
hours of EEO training highlighting his responsibilities as a manager
with respect to EEO procedures under 29 C.F.R. Part 1614, including his
duty to preserve and provide evidence to EEO Investigators.
4) The agency shall consider taking appropriate disciplinary action
against the selecting official. The Commission does not consider training
to be disciplinary action. The agency shall report its decision to the
Compliance Officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
All of the above actions shall be completed by the agency within sixty
(60) days of the date this decision becomes final. The agency is
further directed to submit a report of compliance, as provided in the
"Implementation of the Commission's Decision." The report shall include
all supporting documentation verifying that the corrective action has
been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Omaha, Nebraska P&DC 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M0610)
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), at 9-18 (Nov. 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 31, 2011
Date
2
0120110390
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110390