05A10037
04-26-2002
Terrilyn A. Bailey, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Terrilyn A. Bailey v. Department of the Navy
05A10037
April 26, 2002
.
Terrilyn A. Bailey,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A10037
Appeal No. 01990980
Agency No. 95-68327-005
Hearing No. 270-9609037X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency timely initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Terrilyn
A. Bailey v. Department of the Navy, EEOC Appeal No. 01990980 (August
23, 2000). Complainant alleged she was discriminated against on the
bases of race (African American), color (black), and in reprisal for
prior EEO complaint activity, when on January 25, 1995, she was not
selected for the position of Computer Assistant, GS-335-07/09, at the
Naval Reserve Personnel Center, New Orleans, Louisiana (�NRPC�).
Following a hearing, the administrative judge (AJ) concluded that
complainant established that more likely than not, the reasons provided
by the agency were a pretext for race and color discrimination, but
not retaliation. While the AJ found complainant and the selectee (C1)
(White) similarly qualified for the position, she found the record also
indicated that the selecting official (SO) (White) favored C1 for the
position prior to the interview. The record showed that SO talked to C1
daily, asking her how she was doing and what she was working on; but did
not make similar inquiries of complainant. In addition to the visits,
the record shows that SO asked C1 about her SF 171 application for the
position at issue and encouraged her to apply. While SO affirmed in his
affidavit that he also encouraged Black employees in the Quality Assurance
Branch to apply, all of the Black applicants denied such allegations.
In addition to the above, the AJ noted that another qualified applicant
(C2) (Black) testified that when she asked SO why he did not select her,
he responded that he �had a family to feed.� SO did not refute this
testimony. In addition, the AJ found that a memorandum in the record
from SO to his supervisor supported the conclusion that SO's supervisor
put pressure on SO to select C1, over C2. Accordingly, the AJ found
that the profferred reasons for the selection of C1, were not the real
reason she was selected.
In addition, the AJ found SO's testimony regarding C2 disingenuous.
The AJ also found SO's heavy reliance on a factor that was not in the
vacancy announcement (experience with IRR reports) to be suspicious.
The AJ found that the evidence raised a suspicion of mendacity. Such
suspicion combined with the agency's preference for a White candidate
over a Black candidate who was already working in the same branch as
the vacant position and considered by SO to be doing a �superlative
job� was sufficient to show intentional discrimination. Accordingly,
the AJ found that complainant met her burden of establishing race and
color discrimination. However, the AJ determined that complainant
failed in her reprisal claim, since the record was devoid of evidence
of retaliatory motive.
Lastly, despite finding race and color discrimination, the AJ failed
to award a remedy of back pay since she also found that the agency
had presented �clear and convincing� evidence that it would not have
promoted complainant, in the absence of discrimination, but would have
likely promoted C2 instead.
In the Commission's previous decision, we affirm the AJ's finding of race
and color discrimination, as well as the AJ's finding of no reprisal.
However, the Commission reversed the AJ's finding that the agency
established, by clear and convincing evidence, that it would not have
promoted complainant, in the absence of discrimination. Specifically, we
found that the AJ failed to articulate a basis for her finding of clear
and convincing evidence that C2 would have been hired in the absence
of discrimination. However, since the AJ made the finding that C1, C2
and complainant were all equally qualified for the position at issue,
we concluded that the AJ relied upon the testimony of SO, since his
testimony is the only source of evidence distinguishing the top three
candidates.<1> While we noted in our previous decision that at times
a particular witness may be deemed credible on some points and not
others, we found that the AJ made no such distinction in her findings.
More importantly, we noted that the AJ found SO more than not credible,
she suspected mendacity. Upon reviewing the record as a whole, we
concluded that a finding that the agency met its burden in showing that
it would not have selected complainant, even absent discrimination,
was not supported by substantial evidence.
The agency argues, in its request for reconsideration, that the previous
decision erred in reversing the AJ's finding that the agency met its
burden of proof in showing by clear and convincing evidence that it
would not have promoted complainant. Specifically, the agency asserts
that SO narrowed the list of seven qualifications to three (C1, C2<2>,
and C3<3>). The agency asserts that the Commission's previous decision
erred in finding no evidence other than SO's testimony on the issue of
the top three qualified applicants. Specifically, the agency argues that
the Commander (AO) (White) acted as the approving official and testified
that SO discussed the promotion with him and told him that he was having
a difficult time choosing between two individuals. The record shows that
AO told SO to select the person he felt was most qualified. AO testified
that �when he talked with the selecting official after the selection,
he knew that there were three candidates who were in close contention,
[C1, C2 and C3].� The agency further asserts that during the hearing AO
testified that �he reviewed the [promotion] package and felt from his
own personal experience that at least the three final candidates were
qualified.� The agency also cites to testimony where AO states that
he �would have asked more questions if someone other than the three
final candidates had been selected, to insure that the selection had
followed proper procedures.� The agency asserts that the testimony by
AO indicates that he believed that the final selection for the disputed
position should be from within the top three candidates, which excludes
complainant. Accordingly, the agency argues that the statement by the
Commission in its previous decision that the SO's testimony was the only
source of evidence distinguishing the top three candidates was erroneous.
The agency also contends that the AJ did not specifically discredit the
SO's testimony that he narrowed the final range of candidates to three and
complainant was not among those three candidates. Accordingly, the agency
argues that the implication is that the AJ found such testimony credible.
Analysis and Findings
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b).
After a review of the parties' requests for reconsideration, the previous
decision, and the entire record, the Commission finds that the requests
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request.
With respect to the agency's argument, we disagree with its interpretation
of AO's testimony. We find that AO merely approved C1 based upon
SO's recommendation. AO did not indicate that complainant was less
qualified than C2, and in fact the AJ made a finding that all individuals
were equally qualified. We find that the basis for narrowing the eight
applicants to three was provided solely by SO's testimony. In addition,
the record indicates that SO believed that C2 had a tardiness problem
which arguably made her less qualified than complainant. We conclude
that based upon the factual and credibility findings made by the AJ,
and upon a review of the record
as a whole, the record could not support a determination that agency
met its burden of proof. See Mahran v. United States Department of
Agriculture, EEOC Request No. 05940973 (June 20, 1996).
Accordingly, the decision in EEOC Appeal No. 01990980 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
1. The agency shall offer to retroactively promote complainant to the
Computer Specialist GS-334-7/9 position (and any additional career
ladder promotions she would have been entitled to if she had performed
in the position in a fully successful manner), at the agency's Naval
Reserve Personnel Center (NRPC), New Orleans, Louisiana, from January 25,
1995, when she was not selected for the position, through the date this
decision becomes final or the last date of her employment with the agency,
whichever is earlier. Complainant shall be given a minimum of fifteen
days from receipt of the offer of placement within which to accept or
decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond her control prevented a
response within the time limit. Complainant shall also be awarded back
pay, seniority and other employee benefits from the date of the effective
promotion until the present date, or if she is no longer employed by
the agency, then until the last date of her employment.
2. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The complainant 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 complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant 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."
3. The agency shall take corrective, curative or preventive action to
ensure that similar violations of the law will not recur.
4. The agency shall provide at least 16 hours of training to all
supervisors involved in the challenged decision as to the agency's
obligation to eliminate discrimination in the federal workplace.
5. 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, attorney's fees and costs, and other
benefits due complainant, including evidence that the corrective action
has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Naval Reserve Personnel 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.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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
April 26, 2002
__________________
Date
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 U.S. Department of Navy, Naval Reserve Personnel Center, New Orleans,
Louisiana (�Facility�), supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The Facility has been found to have discriminated on the basis of race
and color when on January 25, 1995, an African American employee was not
selected for the Computer Specialist, GS-334-7/9 position. The Facility
has been ordered to: (1) offer complainant a retroactive promotion;
(2) issue an appropriate award of back pay and other benefits, if it
is determined that complainant is so entitled; (3) award reasonable
attorney's fees and costs; and (4) take corrective action in the form
of training the responsible official(s). The Facility 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 Facility 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 The record indicates that SO narrowed the list of eight applicants to
three, which did not include complainant.
2 The record indicates that SO testified that C2 had tardiness problems.
3 The record indicates that C3 was a Black applicant but was not seriously
considered for the position since the SO understood that she would be
selected for a different position.