01970516
04-14-2000
Gilbert Jefferson, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration Agency.
Gilbert Jefferson v. Social Security Administration
01970516
April 14, 2000
Gilbert Jefferson, )
Complainant, )
) Appeal No. 01970516
v. ) Agency Nos. 01892
) 21492
) 31592
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), sex (male), reprisal (prior EEO activity), and
age (59), in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. �2000e et seq.; the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.<1> Complainant
claims that he was discriminated against when he was not selected for
several GS-11 Printing Specialist positions. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the reasons that following,
the agency's decision is REVERSED and REMANDED.
Complainant was employed as a GS-9 Management Analyst at the agency's
Office of Publications and Logistics Management, Division of Publication
Management, Baltimore, Maryland. Throughout 1991, he applied for the
position of Printing Specialist under four separate vacancy announcements,
but was not selected. Under announcements #1 and #2, two Caucasian
females (aged 40 and 41), and a Caucasian male (aged 55)(herein
referred to as "selectee C") were selected. Under announcement #4,
two Caucasian males (aged 34 and 66) and a Caucasian female (aged
50) were selected. Announcement #3 was canceled without a selection.
Complainant contends that he had more pertinent experience and was much
better qualified than the selectees for these positions, and that his
non-selection was the result of retaliation and discriminatory animus.
He also avers that announcement #3 was canceled to avoid hiring him
for a discriminatory purpose. Complainant sought EEO counseling and,
subsequently, filed three formal complaints. At the conclusion of the
investigation, which consolidated all three complaints concerning all
four non-selections, the agency issued a FAD finding no discrimination.
Complainant appealed this determination to the Commission. In Jefferson
v. Social Security Administration, EEOC Appeal No. 01944529 (February
6, 1996)("Remand"), this Commission determined that the record of
investigation was inadequate, and Vacated the FAD, and Remanded the case
ordering the agency to conduct a supplemental investigation. Pursuant to
this Order, the agency compiled a "supplemental investigation" file,
and issued another FAD (FAD 2), dated September 18, 1996, again finding
no discrimination. It is this decision which complainant now appeals.
This Commission received the investigative file from the agency under
letter dated December 19, 1996. Upon review of the investigative
file, the supplemental investigation materials appeared to be missing
because the agency had produced only copies of certain affidavits and
materials obtained from the first investigation as its "supplemental
investigation." The Commission contacted the agency in March 1999 and
requested the supplemental investigation file. Multiple requests for the
supplemental file ensued, when the agency finally faxed what it deemed to
be the supplemental file to this Commission on October 4, 1999. Review of
these documents reveals that they are identical to those submitted by
the agency in December 1996. Then, by "Routing and Transmittal Slip"
dated October 7, 1999, the agency submitted the requested supplemental
investigation file. This submission was received by the Commission on
October 12, 1999.
In its first Remand Order, this Commission directed the agency to identify
the Recommending and Selecting officials for all four vacancies, and
also to provide detailed explanations of the selection process for each,
including the names, race, sex, age, and EEO activity of all reviewers,
staffing specialists, and interviewers. Furthermore, in specifically
addressing complainant's first allegation of non-selection (NS1) in May
1991 (Vacancy No. 625), the Remand set out that the agency failed to
obtain an affidavit from a personnel specialist (PPS) interviewed by
the EEO Counselor, who stated that she had initially determined that
one of the two selectees for this position, identified as "selectee C"
(a white male, age 55), was not minimally qualified for the position, but
that she was directed by her supervisor to include selectee C on the list
of qualified applicants pursuant to a directive from an official at the
hiring office. The Remand ordered the agency to obtain a sworn statement
from PPS regarding this situation. Additionally, the Remand concurred
with complainant's contention that the selecting official's assertion
that selectee C was chosen because he had "unique" skills, was vague,
and ordered that the agency obtain sworn statements from the recommending
and selecting officials providing the reasons for the decision to select
selectee C, "which are not already included in the investigative file."
The Commission has held that an adverse inference may be taken against
the party failing to provide requested information or testimony unless
"good cause" is shown for the failure to fully and timely respond to
the request (emphasis added). See King v. United States Postal Service,
EEOC Request No. 05940441 (February 2, 1995). Inasmuch as the agency was
on notice as of March 1999 that the supplemental investigation file was
missing, and responded seven months later by submitting the incorrect
materials, upon which this Commission properly relied upon in reaching
a preliminary determination in this matter prior to October 12, 1999,
we find that the October 12, 1999, submission of these materials to be
untimely, within the meaning of the law and regulations cited above.
Therefore, we will drawn an adverse inference against the agency that the
requested information would have reflected unfavorably on the agency's
position in all matters pertinent to this information. See Crockett
v. U.S. Postal Service, EEOC Appeal No. 01934472 (January 19, 1996).
Complainant's complaint allegations constitute claims of disparate
treatment based on race, sex, age and reprisal. As such, the claims
must be analyzed under the three-tier order and allocation of proof as
forth in McDonnell Douglas Corporation v. Green, 411, U.S. 792 (1973),
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requires a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue),
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases).
By virtue of the adverse inference, as a threshold matter, we find that
complainant established a prima facie case of discrimination on the bases
of sex, race, and age regarding vacancy announcements #1, #2, and #4,
which were each filled with more than one selectee, particular to those
selectees under each announcement who were of a different race and sex
than complainant, and who were under 40 years of age (announcement #4),
or over 40 years of age, but significantly younger than complainant
(announcements #1 and #2). See O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308 (1996). We also find that complainant established
a prima facie case of reprisal regarding each non-selection, and that he
established a prima facie case of race, sex, age and reprisal regarding
announcement #3, which was cancelled.
We also find that the agency was unable to articulate a nondiscriminatory
reason for its selections which were not a pretext for discrimination.
See 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). To support
this finding, the Commission makes the following adverse inferences
against the agency. First, we infer that complainant was shown to
be the best qualified candidate with respect to all four vacancies,
and that he was not chosen because of discriminatory bias on the part
of all responsible management officials. Second, we infer that in
particular, complainant was better qualified than selectee C. Third,
we infer in particular that a discriminatory motive may be ascribed to
the responsible management officials who directed the personnel office
to place selectee's C name on the list of applicants despite failing to
meet the minimal qualifications for the position.
We further note that even independent of the adverse inference, and taking
into consideration the evidence in the supplemental investigation record,
we find that complainant was better qualified than selectee C on the
affidavit testimony of the team leader (TL) responsible for reviewing
the work of the Printing Specialists in the position at issue.
TL testified that she was familiar with the working skills and
qualifications of all of the candidates for all of the positions at issue.
TL testifies that in her opinion, complainant was better qualified
than selectee C and should have been selected under Vacancy No. 625.
She testifies that complainant had 15 years of pertinent experience,
whereas selectee C had only 2 or 3 years, so that complainant had the
advantage of working on all of the publication projects infrequently
produced. She also stated that complainant had a better corporate
history regarding speciality jobs and who to contact in these instances.
Based on her review of the work of both complainant and selectee C, TL
stated that complainant took pride in his work, and always performed his
job efficiently, and that he was highly skilled and had more experience
and background processing publications as compared to selectee C.
Although she noted that selectee C performed well in the position at
issue, she indicated that he required guidance, training and direction
which complainant would not have required. She did not observe any
"unique skills" on the part of selectee C in the performance of his
duties while under her supervision.
In the belated supplemental affidavit testimony, the selecting official
states that selectee C's many years of working and supervising in
the SSA Print Shop gave him "unique skills" regarding the "specific
requirements for properly producing in a printing environment."
He does not describe these skills nor their application to the duties
(i.e. specific requirements) of the position at issue, such that we must
find that little, if any, of the original vagueness as been dissipated.
In addressing TL's testimony, the selecting official opines that it might
be the result of animosity toward selectee C, or fear of not supporting
complainant, but offers no evidence to support this opinion. He also
indicates that she was not a "supervisor" (apparently as opposed to a
"team leader"), and also that she was not involved in the selection
process. However, we find that in her role as "team leader" TL's
testimony is credible, and the fact that she played no role in the
selection process has no impact on the credibility of her testimony.
Accordingly, based on the adverse inferences drawn above, as well as the
highly credible and persuasive affidavit testimony of TL, we conclude that
the agency discriminated against complainant on the bases of race, sex,
age, and reprisal when it failed to select him as the best qualified
candidate under announcements #1, #2, and #4, and when it cancelled
announcement #3 without making a selection.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we once again
REVERSE the FAD and REMAND this case to the agency to take remedial
actions in accordance with the decision and order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively promote complainant to the
GS-1102-11 Printing Specialist position, or other comparable GS-11
Printing Specialist position agreeable to complainant, retroactive to
the effective date of the first instance of discriminatory non-selection
in May 1991. Complainant shall also be awarded back pay, seniority
and other employee benefits from the date of the effective promotion,
along with any incurred and reasonable attorney's fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to Reg.64 Fed. Reg. 37,644, 37,659-60, (1999) (to be codified at 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;"
2. The agency is directed to conduct training for the responsible
Recommending and Selecting Officials and all managers who were found to
have discriminated against complainant by not selecting him regarding all
four vacancy announcements. The agency shall address these employees'
responsibilities with respect to eliminating discrimination in the
workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law;
3. The agency shall take appropriate preventative steps to ensure that
no employee is subjected to discrimination due to race, sex, or age, or
retaliated against for engaging in protected EEO activities, especially
African American males over the age of 40.
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
each incident of discrimination (non-selection) and any pecuniary or
non-pecuniary losses. See West v. Gibson, 119 S. Ct. 1906 (1999). 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. The agency shall issue a final decision on the
issue of compensatory damages. 29 C.F.R. � 1614.110. The supplemental
investigation and issuance of the final decision shall be completed
within one hundred and twenty (120) calendar days of the date this
decision becomes final. A copy of the final decision must be submitted
to the Compliance Officer, as referenced 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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Baltimore, Maryland Printing
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 (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 (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
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).
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:
April 14, 2000
__________________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on: _________________________.
__________________________
1 On 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.