01982792
03-12-1999
Surjit S. Grewal, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Surjit S. Grewal, )
Appellant, )
)
)
v. ) Appeal No. 01982792
) Agency No. 1-J-612-1002-95
) Hearing No. 210-97-6309X
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On February 24, 1998, appellant appealed the final agency decision dated
February 2, 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. In his complaint, appellant
alleged discrimination based on his race (Asian), religion (Sikh), and
national origin (Indian) when in October 1994, he was not selected for
the Maintenance Manager position, EAS-19, at the agency's O'Hare Air
Mail Center (AMC) facility.
The record indicates that at the time this matter arose, appellant was
employed by the agency as a Manager of Field Maintenance Operations,
EAS-17, at the agency's Palatine, Illinois facility. The record indicates
that the Maintenance Manager position at issue was announced on or about
May 10, 1994, and appellant timely applied for the position. In July
1994, a promotional panel consisting of three individuals reviewed the
applications, interviewed the applicants, and ranked four applicants,
including appellant, as the best qualified. The individual numerically
ranked in first place ultimately withdrew. Appellant's numerical
score placed him in second place. The panel recommended these four
applicants for the position to a selecting official. The selecting
official interviewed these applicants, including appellant, and selected a
selectee (non-Asian, non-Sikh, and non-Indian), who was in fourth place.
The record indicates that the selecting official's selection decision
was approved by a concurring official. The record indicates that the
selecting official retired from the agency on or about January 3, 1997.
The record indicates that appellant filed a formal complaint dated
February 3, 1995, alleging that he was discriminated against 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 December 8, 1997, following a hearing, the AJ issued a recommended
decision concluding that the evidence of record supported a finding that
appellant had been discriminated against based on his race, religion,
and national origin when he was not selected for the subject position.
Specifically, the AJ found that the selecting official provided no
substantive evidence to show how or why he considered the selectee
to be the best qualified applicant for the subject position. The AJ
stated that the only information offered by the selecting official was
his unsworn statement indicating that his selection decision was based on
the four best qualified applicants' 991 forms and his personal interview.
The AJ noted that since the selecting official failed to appear at the
hearing, his unsworn statement was insufficient to constitute evidence.
The AJ also stated that the concurring official's testimony indicated
that he relied on the selecting official to make the subject selection
and did not actually review any of the applicants' qualifications, but
merely concurred in the selecting official's section decision. Based on
the foregoing, the AJ concluded that the agency failed to articulate a
legitimate nondiscriminatory reason for not selecting appellant for the
subject position.
In a final decision dated February 2, 1998, 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.
After a careful review of the record in its entirety, including
the statements submitted on appeal, the Commission finds that the
AJ's recommended decision sets forth the relevant facts and properly
analyzes the appropriate regulations, policies and laws. After careful
consideration of the arguments of the parties, and based upon the evidence
of record, the Commission discerns no basis to disturb the AJ's finding of
discrimination. In reaching this decision, the Commission notes that the
credibility determinations of the AJ are entitled to deference due to the
AJ's first-hand knowledge, through personal observation, of the demeanor
and conduct of the witnesses at the hearing. See Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996).
Accordingly, it is the decision of the 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
ive to October 1994, and shall determine the appropriate amount
The agency is ORDERED to take the following remedial actions:
(1) In accordance with the AJ's recommended decision, the agency shall
immediately offer to appellant the Maintenance Manager position, EAS-19,
at its O'Hare Air Mail Center facility, or one equivalent in grade,
retroactive backpay 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. Appellant shall cooperate in the agency's
efforts to compute the amount of backpay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of backpay and/or benefits,
the agency shall issue a check to 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.�
(2) The agency shall post at its O'Hare Air Mail Center, Chicago,
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 any other material. The original signed notice
is to be submitted to the Compliance Officer at the address referenced
in the statement entitled �Implementation of the Commission's Decision,�
within ten (10) calendar days of the expiration of the posting period.
(3) 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 verifying
that the foregoing corrective actions have 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