01992294
08-15-2002
Nora J. Linton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.
Nora J. Linton v. United States Postal Service
01992294
August 15, 2002
.
Nora J. Linton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Mid-Atlantic Area),
Agency.
Appeal No. 01992294
Agency No. 4D-280-1043-96
Hearing No. 140-97-8091X
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges in her complaint she was discriminated against by the agency on
the bases of her race (Black) and sex (female) when, on December 27,
1995, she became aware that others had been hired for the position of
Transitional Employee (TE) Clerk, but she had not. For the following
reasons, the FAD is VACATED and the matter REMANDED to the agency for
continued processing as ordered below.
BACKGROUND
The record reveals the following information pertinent to this appeal.
In December 1994, complainant, who had up to that point been employed
periodically by the agency at its Fayetteville, North Carolina facility,
informed the facility Postmaster in writing of her interest in becoming
employed as a TE Clerk. On January 3, 1996, after not being hired into
a TE Clerk position and upon becoming aware that four other persons (H1,
H2, H3, H4), none of her race and three not of her sex, were hired into
TE positions, she contacted an EEO counselor. Complainant subsequently
filed a formal EEO complaint with the agency on May 28, 1996, alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation into the complaint, complainant
was provided a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the
AJ issued a decision finding discrimination. In that decision, the AJ
concluded that complainant had established a prima facie case of racial
discrimination because she had shown that she had applied for and was
qualified for a TE position, she was not hired for the position, and
others of similar or no greater qualifications and of a different race
were hired. The AJ rejected complainant's sex discrimination claim,
finding that the record contained insufficient evidence to support a
showing that her sex was a relevant factor in the agency's decisions.
The AJ then stated in his decision that it was unclear whether the
agency had articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, the AJ found that H1 had been hired prior to
complainant's request for a TE Clerk position, and H2 had been placed
in a TE position as a result of an EEO settlement agreement. However,
the AJ continued that it was difficult for him to glean exactly what the
agency's articulated reasons were for the actual hiring of any of the
four people. The AJ stated that it appeared that the agency had simply
stated there was no discrimination against complainant, and that, in
contrast to the generally-expected response to a claim of discrimination,
the agency had made �no claim or showing that the individuals selected
were either qualified or superiorly qualified to the complainant.� The
AJ went on to �guess� that �the most rational articulation has been that
we should assume that they were qualified� and therefore there was no
legitimate reason to have not employed them in the TE positions at issue.
The AJ also concluded variously that complainant had established pretext,
as there was no clearly articulated legitimate nondiscriminatory reason
for the agency's actions; that the �evidence of discriminatory hiring
shows a trend, in that of the four positions . . . which were filled
over the relevant time period, no African-Americans were hired or
selected;� that the agency's rules regarding nepotism appeared to have
been violated; and that the agency had failed to describe or articulate
its decisionmaking process for filling the TE positions. From this the
AJ further concluded that complainant had established that she had been
discriminated against on account of her race.
The agency's final decision rejected the AJ's decision. In its FAD,
the agency agreed with the AJ's decision regarding complainant's sex
discrimination claim, but found that complainant had failed to establish
a prima facie case of racial discrimination because she was not similarly
situated to the four hirees. The FAD also stated that the AJ had found
that the agency had articulated a legitimate, nondiscriminatory reason
for the hiring decisions at issue�that the hirees were hired because
they were as qualified as complainant. The FAD further rejected the
AJ's conclusion that complainant had established pretext, and made a
finding of no discrimination. This appeal followed.
On appeal, complainant contends that the AJ's decision correctly
summarized the facts and reached the appropriate conclusions of law.
The agency raises no arguments on appeal.
ANALYSIS AND FINDINGS
Discrimination Claims
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 Bd., 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).
In cases alleging disparate treatment in which there is an absence of
direct evidence of discrimination, the allocation of burdens and order
of presentation of proof is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, complainant
must establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination; i.e., that a prohibited consideration was a factor
in the adverse employment action. Kimble v. Department of the Navy,
EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
In order to establish a prima facie case of discrimination based on race,
complainant must show that she is a member of a protected group and that
she was subjected to an adverse employment action. Packard v. Department
of Health & Human Serv., EEOC Appeal Nos. 01985494, 01985495 (Mar. 22,
2001). She must also show either that she was treated less favorably
than other similarly situated employees outside of her protected group,
id., or must present other, noncomparative evidence which supports an
inference that the agency was motivated by unlawful discrimination, see
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996);
EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
The evidentiary record supports the AJ's finding that complainant
established a prima facie case of racial discrimination, but does not
support his finding that she did not also establish a prima facie case of
sex discrimination. Complainant established that she is a Black female,
that she was not hired for a TE position, and that three of the four
alleged hirees were in fact subsequently hired and were not of her race,
and two of those three were not of her sex. Accordingly, we conclude that
complainant established a prima facie case of race and sex discrimination
as to the agency's hiring of H2, H3, and H4 rather than complainant.
Once a complainant has established a prima facie case, the burden shifts
to the agency to �produce evidence that [complainant] was rejected,
or someone else was preferred, for a legitimate, nondiscriminatory
reason.� Reeves, 530 U.S. at 142 (quoting Burdine, 450 U.S. at 254).
The agency's explanation must be sufficiently clear to raise a �genuine
issue of fact� as to whether discrimination occurred. Burdine, 450
U.S. at 254. To meet its burden, the agency must produce sufficient
evidence to support a nondiscriminatory explanation for its decision.
Reeves, 530 U.S. at 143.
We agree with the AJ that the agency failed to articulate a legitimate,
nondiscriminatory reason for complainant's nonselection for a TE Clerk
position. The evidence presented by the agency was of two potential
decisionmakers�the Postmaster and the Human Resources Analyst�each stating
that the other was responsible for the hiring decisions at issue, and
neither, nor anyone else for that matter, providing any explanation for
those decisions. As stated above, the record establishes that H1 and
H2 are inappropriate comparators, as H1 was hired before complainant had
formally expressed her interest in becoming a TE Clerk, and H2 was hired
pursuant to an EEO settlement agreement. These two were also hired for
TE Carrier positions, as opposed to the TE Clerk position complainant
sought. However, the other two selections�for TE Clerk positions�have
not been explained by the agency in any manner which would rebut the
presumption of discrimination and create a genuine issue of fact as to
whether discrimination occurred. The agency failed to meet its burden
as to the hiring of H3 and H4.
We note that complainant offered insufficient evidence to disprove the
agency's showing that H1 and H2 were hired as TE Carriers, not TE Clerks,
and that H1 was hired prior to her application and H2 pursuant to an EEO
settlement agreement. In light of our finding that the agency failed
to meet its burden of production as to the hiring of H3 and H4, there is
no need to examine the AJ's pretext findings, or the agency's arguments
that pretext was not shown, as the issue of pretext is irrelevant and
therefore unnecessary to our disposition of the matter on appeal.
In light of the evidence presented by complainant establishing her prima
facie case of race and sex discrimination, and the agency's failure to
present sufficient evidence to support its claimed (but unarticulated)
legitimate, nondiscriminatory reasons for its hiring decisions as to H3
and H4, we conclude that complainant has presented sufficient unrebutted
evidence to prove her claims of race and sex discrimination when the
agency hired H3 and H4 as TE Clerks rather than complainant. Therefore,
the Commission REVERSES the agency's FAD and directs the agency to take
remedial actions in accordance with this decision and the Order below.
Remedy
As a remedy for the discrimination complainant suffered, the AJ awarded
her back pay for the period that H3 and H4 were employed as TE Clerks
(April, 1995 through March 29, 1996), and awarded her� reasonable�
attorney's fees. The AJ also awarded her compensatory damages in the form
of directing the agency to �pay the medical and psychological counseling
or other treatment bills that complainant shows to be directly related� to
the discrimination found, as well as compensatory damages in the amount
of $500.00 for her pain and suffering. The AJ acknowledged in his bench
decision that the evidence regarding compensatory damages was �scarce or
sparse,� and there is no clear indication in the record that the parties
had been put on notice that they would be required to present evidence
pertaining to damages at the hearing. Therefore, we VACATE the AJ's
compensatory damages award and REMAND the matter for a hearing before
an AJ for a determination on the issue of compensatory damages. The AJ
shall also accept evidence and make a determination on attorney's fees,
as ordered below.
We note that the AJ did not award complainant an offer of a TE Clerk
or substantially equivalent position in the Fayetteville facility, as,
at the time of the AJ's decision, she had secured permanent, regular
employment with the agency at a different location, and there was no
evidence that complainant would have been entitled to consideration
for career status in Fayetteville had she been hired as a TE Clerk.
Complainant had requested that the agency place her in the Fayetteville
facility in a comparable position to that she then held at the other
facility, but does not challenge the AJ's analysis or decision denying
this remedy on appeal. Accordingly, we do not disturb the AJ's decision
to not order the agency to offer complainant a TE clerk or substantially
equivalent position.
ORDER (D0900)
The agency is ordered to take the following remedial measures:
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.�
The agency shall post the attached notice, as detailed below.
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 complainant,
including evidence that the corrective action has been implemented.
The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Charlotte district office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110 within forty
(40) days of receipt of the Administrative Judge's decision. The agency
shall submit copies of the Administrative Judge's decision and the final
agency action to the Compliance Officer at the address set forth below.
POSTING ORDER (G0900)
The agency is ordered to post at its Fayetteville, North Carolina,
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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
August 15, 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at the United States
Postal Service facility in Fayetteville, North Carolina (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 DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The 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 was found to have violated Title VII when it failed to hire
an applicant on account of her race and sex. The agency was ordered to:
(1) pay the applicant back pay and other benefits; (2) pay the applicant
proven compensatory damages; (3) pay reasonable attorney's fees, if
applicable; and (4) post this notice.
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