01970288
02-01-2000
Sheila Woodard, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Sheila Woodard v. Department of Labor
01970288
February 1, 2000
Sheila Woodard, )
Complainant, )
)
v. )
) Appeal No. 01970288
Alexis M. Herman, ) Agency No. 411088
Secretary, )
Department of Labor, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (African-American), sex (female), and age (date of birth:
October 27, 1949), 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 of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Complainant alleges that she was discriminated against when she was not
selected for two positions within the agency for which she had applied.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED in PART
and REVERSED in PART.
BACKGROUND
The record reveals that during the relevant time period, complainant was
employed as a Mathematician in the Employment Training Administration
("ETA") at the agency's headquarters in Washington, D.C. In July 1993,
the agency issued Vacancy Announcement Number ETA 93-72 for the position
of Computer Specialist, GS-334-14, with ETA. In September 1993, the
agency issued Vacancy Announcement Number ETA 93-95 for the position of
Computer Specialist, GS-14, also with ETA.<2> Complainant applied for
both positions but was selected for neither.
Believing herself to be a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on March 25, 1994. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or, alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the time period specified in our Regulations, the agency
issued a FAD.
The FAD concluded that, in light of the explanation provided by the
agency for its actions, complainant had failed to prove that the agency
had discriminated against her in any respect. From the FAD complainant
brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission agrees
with the agency that, with respect to the vacancy advertised in
Vacancy Announcement Number ETA 93-72, complainant has failed to prove
discrimination. The Commission finds, however, with respect to the
vacancy originally advertised in Vacancy Announcement Number ETA 93-95,
that the agency has failed to articulate a legitimate, nondiscriminatory
reason for its actions.
Vacancy Announcement Number ETA 93-72
The record shows that the complainant was one of 12 applicants for this
position who were rated "very good" on each of five evaluation factors.
The applicable collective bargaining agreement dictated that only
10 applicants could be included in the list of certified candidates.
Complainant was one of the two applicants who were not certified, thus
eliminating her from consideration for the position.
According to the agency, in order to determine which two of the applicants
would be eliminated, the Merit Staffing Panel reviewed the applications
again, making "very fine points" of distinction to decide which of the
applicants to certify. The panel members explained that they based
their decisions more on the applicants' technical knowledge of computer
systems, in particular, the UNIX operating system, than on length of
the applicant's experience with the agency. In addition, the panel
members gave more favorable consideration to those applicants who had
experience working with computer systems in the Department of Defense.
These are legitimate, nondiscriminatory reasons for the agency's actions.
Complainant has been unable to show that the agency's explanations for
its actions are pretexts designed to conceal intentional discrimination.
Complainant argues that the agency's purported emphasis on experience
with the UNIX operating systems is pretextual, pointing out that many
of the Forms-171 of those who were chosen over complainant contained no
mention of UNIX. This, without more, is insufficient to prove pretext.
In the absence of expert testimony on the point, we are unable to conclude
that these applicants had no experience with UNIX simply because the
term "UNIX" does not appear in their applications. It may be that UNIX
experience is implicitly reflected in the experience listed in the
applications. Complainant has failed to adduce the necessary expert
evidence to prove her point.
Complainant also argues that the agency's purported emphasis on Department
of Defense experience, which complainant lacked, is pretextual, pointing
out that only one of the 10 applicants who were certified was a current
Department of Defense employee. This fact does not rebut the agency's
case. The record shows that several of the applicants who were placed
on the certification list, although not employed by the Department
of Defense at the time their applications were submitted, had prior
computer-related experience with that department.
Vacancy Announcement Number ETA 93-95
The agency does not dispute that complainant has established a prima
facie case of racial discrimination in that the selectee for this
position is White and complainant is African American.<3> Once an
complainant has set forth a prima facie case, the burden of production
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. McDonnell Douglas, 411 U.S. at 802-04. The agency
may rebut the presumption of discrimination by clearly setting forth,
through the introduction of admissible evidence, its reasons for not
selecting complainant. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 254-255 (1981).
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. Moreover, it must "frame the factual issue with sufficient clarity
so that [complainant] will have a full and fair opportunity to demonstrate
pretext." id. at 255-256; Parker v. United States Postal Service,
EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at
256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993),
citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
716 (1983) and Burdine, 450 U.S. at 256. While the agency's burden of
production is not onerous, it must nevertheless provide a specific, clear,
and individualized explanation for the treatment accorded the affected
employee. Lorenzo v. Department of Defense, EEOC Request No. 05950931
(November 6, 1997).
Here the agency has failed to meet this burden. The explanation for
its actions is neither specific, clear, nor individualized. The only
explanation the agency offers for its actions is contained in two
affidavits executed by the selecting official. In the first affidavit,
dated January 20, 1995, the selecting official explained his decision
not to select complainant as follows:
The process I used in my selection of the applicants was that I prepared
a list of six questions, and each candidate was asked the same questions,
and I looked at their background and experience. . . . After comparing
the background, experience, and my interview notes, I believe that I
selected the best qualified applicant for the position.
The way in which the selectee was better qualified for the position was
the selectee's experience in the field of interest were [sic] superior to
[complainant's]. I liked the responses that the selectee gave and I was
convinced that she had the perspective and attitude toward the job that
would ensure success in the office.
None of this information is sufficiently particularized or specific
to permit complainant to mount an evidentiary challenge to any of the
explanations offered by the agency for its actions. The affidavit
sets forth no objective facts to support its conclusions. Even the
subjective observations about "perspective and attitude" lack specific
details which complainant might attempt to show to be untrue.
One and one-half years later, on May 31, 1996, the selecting official
executed an "amended" affidavit in an apparent attempt to remedy the
lack of detail in the first affidavit. It states in relevant part:
When I used the words "field of interest" in my original affidavit, I
was referring to the qualities that the selectee possessed in the field
of applications programming in a variety of languages, and data bases,
and her related knowledge of local area networks.
* * *
What I meant when I used the words "perspective and attitude" was that
the selectee demonstrated self-assurance and confidence, and an ability
to verbalize and articulate her views in a very convincing manner during
the interview to a greater extent than [complainant].
Although the amended affidavit puts a modicum of meat on the bones
of the agency's otherwise skeletal explanation for its actions, it is
insufficient to afford complainant a meaningful opportunity to prove
the explanation to be untrue. It provides no specifics about which
applications, languages or data bases the selecting official considered
to be important in choosing the selectee. Similarly, the amended
affidavit's explanation concerning the meaning of the phrase "perspective
and attitude" is nothing more than a series of conclusory generalities.
We hold that the agency did not adequately explain its decision not
to select complainant. Consequently, complainant was denied a fair
opportunity to demonstrate pretext. See Young v. Department of the
Treasury, EEOC Request 05940517 (October 13, 1995). Thus, we find
that complainant was discriminated against on the basis of race when
she was not selected for the position originally advertised in Vacancy
Announcement Number ETA 93-95.
Compensatory Damages
In her statement on appeal complainant seeks an award of compensatory
damages. However, in the course of the investigation the agency developed
no information concerning the nature and extent of damages complainant
might have suffered. On remand, the agency shall investigate the question
of damages in accordance with the order below.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as it
relates to the position advertised in Vacancy Announcement Number ETA
93-72 and we REVERSE and REMAND the FAD as it relates to the position
originally advertised in Vacancy Announcement Number ETA 93-95.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1 The agency shall immediately make an unconditional offer of employment
to the complainant for the position of Computer Specialist, GS-14,
or an equivalent position, in the agency's headquarters.
2. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation on the issue of complainant's entitlement to compensatory
damages and shall afford complainant an opportunity to establish a causal
relationship between the incident of discrimination and any pecuniary
or non-pecuniary losses. See West v. Gibson, 119 S. Ct. 1906 (1999);
Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390
and 01960518 (April 27, 1998). The complainant shall cooperate in the
agency's efforts to compute the amount of compensatory damages, and shall
provide all relevant information requested by the agency. Complainant,
through counsel, shall submit a request for attorney's fees and costs in
accordance with the Attorney's Fees paragraph set forth below. No later
than sixty (60) days after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a
final agency decision addressing the issues of attorney's fees, costs,
and compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below.
4. 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.
5. The agency is further directed to post a notice in compliance with
the paragraph below entitled "Posting Order."
POSTING ORDER (G1092)
The agency is ORDERED to post, at its Washington, D.C. headquarters,
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 (3O) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (2O) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
2/1/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
2/1/00
Date __________________________
Equal Employment Assistant
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. This facility supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
This facility has been found to have violated Title VII by failing to
select an individual for a position because of her race. The agency
shall therefore remedy the discrimination by: promoting this individual;
providing her with back pay and other benefits due from the date she
would have been promoted; and making a determination on her entitlement
to compensatory damages.
The facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment are properly trained
and in the future, will abide by the requirements of all Federal equal
employment opportunity laws.
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. 29 C.F.R. Part 1614.
_____________________
Date Posted: ___________
Posting Expires: _______
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2This position was later readvertised under Vacancy Announcement ETA
94-001.
3 Complainant did not establish a prima facie case of sex or age-based
discrimination concerning this position because the selectee was of the
same sex as complainant and was older than complainant.