Agonafer v. Rubin

• Decision Date: 04 December 1998
• Docket Number: No. 97 Civ 5737 CLB.,97 Civ 5737 CLB.
• Citation: 35 F.Supp.2d 300
• Parties: Carolyn AGONAFER, Plaintiff, v. Robert E. RUBIN, Secretary, Department of the Treasury, Washington D.C., Defendant.
• Court: U.S. District Court — Southern District of New York

35 F.Supp.2d 300

Carolyn AGONAFER, Plaintiff, v. Robert E. RUBIN, Secretary, Department of the Treasury, Washington D.C., Defendant.

No. 97 Civ 5737 CLB.

United States District Court, S.D. New York.

December 4, 1998.

Michael Howard Sussman, Sussman, Bergstein, Wotorson & Whateley, Goshen, NY, Ambrose W. Wotorson, Ambrose W. Wotorson, P.C., New York City, for plaintiff.

Andrew W. Schilling, U.S. Attorney's Office, New York City, for defendant.

FINDINGS, CONCLUSION & ORDER

BRIEANT, District Judge.

Plaintiff, Carolyn Agonafer, a federal employee, brought this action alleging retaliation, and discrimination on the basis of race, age, and gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (1998)¹ against defendant Robert E. Rubin, Secretary, Department of the Treasury. This Court conducted a bench trial from October 13, 1998 through October 14, 1998 and now makes the following findings of fact and conclusions of law.

Ms. Agonafer is a 48 year-old African-American woman who since 1987 has been employed by the Internal Revenue Service (the "IRS"), in its Poughkeepsie, New York, Post of Duty ("POD"). Ms. Agonafer hails from Wilson, North Carolina and has an attenuated and cultivated, southern accent which reveals her heritage. This Court observed Ms. Agonafer's speech as neither confusing nor difficult to understand. Contrary to allegations of the employer, this Court did not observe Ms. Agonafer's accent as reflecting a low-class or uneducated tone.

In 1989, Ms. Agonafer applied for, and was denied promotion to the position of tax auditor — vacancy announcement number 89-71. Although Ms. Agonafer was initially notified that she was qualified for the position, she was subsequently informed by letter that her name was not on the list of those who had been selected. The individual who had been selected for the position for the Poughkeepsie POD was not named in the letter. Ms. Agonafer only learned of the identity of that individual when the Poughkeepsie office had a celebration for that individual. None of the individuals selected for the tax auditor position for vacancy 89-71 were African-Americans. Ms. Agonafer claims that she was more experienced than all those selected, including the individual employed in the Poughkeepsie POD. She raised the issue of race discrimination informally with a Treasury Department Equal Employment Opportunity ("EEO") counselor, but ultimately decided against filing a formal complaint of discrimination when she was told that she was the second highest rated applicant and that she would get the next available position.

In 1991, Ms. Agonafer again applied for and was denied a promotion, this time to a vacant Revenue Officer position in the IRS's Poughkeepsie POD — vacancy announcement number 91-60. This time, she filed a union grievance in May of 1991, based on an undisputed claim that as a result of a "clerical error" she was provided erroneous information concerning her eligibility for the position. Ms. Agonafer expressed her feeling that the clerical error, which resulted in her once again missing an opportunity to be promoted, was racially motivated. Gerardo Fernandez, an EEO counselor and specialist within the IRS, represented Ms. Agonafer in the grievance proceeding and was thus required to inform his immediate supervisor, Michael Shultz, of the grievance. Joseph Rusek, chief of the Collection Division, which included Revenue Officers, also participated in the resolution of Ms. Agonafer's grievance. The IRS settled the grievance by agreeing that Ms. Agonafer would receive priority consideration for the next available Revenue Officer position.

"Priority consideration" is defined in Section 10 of the collective bargaining agreement between the IRS and National Treasury Employees Union (Plaintiff's Ex. 49) as follows:

B. Priority consideration consists of a promotion certificate which contains an employee's name alone being sent to a selecting official before the official considers other applicants for a position. (Emphasis added)

. . . . .

E. If the appropriate vacancy has already been announced, the employees due the priority consideration will be considered by the selecting official before other applicant are ranked or referred for selection.

According to Mr. Fernandez, "Priority consideration has been, as a matter of practice, a semiautomatic next job of the person who has the priority consideration."

In 1992, Ms. Agonafer once again applied for a vacant Revenue Officer position in the Poughkeepsie POD — vacancy announcement number 92-48. This announcement was for three Revenue Officer positions, one each in the Albany, Queensbury, and Poughkeepsie PODs By this time, Ms. Agonafer had been temporarily relocated to a satellite office in Newburgh, New York. Despite IRS regulations to the contrary, this vacancy announcement was not posted in the Newburgh POD. Ms. Agonafer only found about the vacancy through a fellow employee. Upon receiving that information, she submitted the requisite paperwork — Form 4536 — to her manager, Angela Santos, who in turn informed Ms. Agonafer that she was entitled to priority consideration for the Revenue Officer position in the Poughkeepsie POD.

Ms. Agonafer was interviewed on September 24, 1992, in the Kingston POD, by a three member selection panel consisting of Michael Schultz, Group Manager of the Poughkeepsie POD, Al Janik, Group Manager of the Queensbury POD, and Thomas Crossen, Group Manager, Group 16. Everyone understood that Ms. Agonafer was only interested in the position at the Poughkeepsie POD. Consistent with her priority consideration, Ms. Agonafer was the first applicant interviewed for any of the three positions. All other applicants were interviewed a week later in Albany. All three members of the panel were white. Each member of the panel either admitted knowing or was shown by the evidence at trial to have known of Ms. Agonafer's prior EEOC grievance.

This interview was not Ms. Agonafer's first encounter with Mr. Schultz. In 1987, while on duty in the Poughkeepsie POD, Ms. Agonafer was in the office with Mr. Shultz while a protest march was being conducted over the "Hamilton Fish Bridge" in connection with the Tawana Brawley case.² Ms. Agonafer claims that Mr. Shultz observed the march through the window and then proceeded to openly state that they, the African-American marchers, should be killed just like the Jews, and if it were up to him, he'd do it. While this Court takes judicial notice that the Hamilton Fish Bridge is actually in Beacon, the rest of Ms. Agonafer's allegations appeared credible. Poughkeepsie is the location of the Mid-Hudson Bridge.

This statement is not the only racial comment attributed to Mr. Shultz. Thomas Maines, a white male Revenue Officer in the Poughkeepsie POD also testified about a racially motivated comment made by Mr. Shultz. In June 1991, Mr. Maines learned that a friend of his, Zachary Santiago, who is an African-American male, was applying for a Revenue Officer's position with the Poughkeepsie POD. At the time, Mr. Schultz was a Collections Group Manager at the Poughkeepsie POD. Mr. Maines asked Mr. Schultz if this was the year that the Poughkeepsie POD was going to break the "color barrier," which was an explicit reference to the fact that at that time the Poughkeepsie POD was staffed only by white employees. Schultz replied, "not while I'm the manager," or "not as long as I'm manager." This Court finds no basis to disbelieve the testimony of Mr. Maines.

Based on her priority consideration, the only way Ms. Agonafer could not receive the promotion was if she failed the interview. Not coincidently,³ the panel unanimously concluded that plaintiff failed the interview. This decision was based primarily on their adverse assessment of her oral presentation and "problem solving skills." Mr. Janik admitted that Ms. Agonafer was in his experience the first person ever to fail a promotion interview. Consistent with the priority consideration concept, Ms. Agonafer was served with a "nonselection letter" detailing the reasons for her non-selection.

On the Interview Form, filled out by Mr. Schultz, the designated leader of the panel, the panel recorded that "Carolyn did not express herself adequately — she used inappropriate language in answering some questions. She rambled on in some instances, and was not concise or clear in her answers." As part of the claim that Ms. Agonafer had poor communication, or "meet and deal" skills, the panel stated that Ms. Agonafer's speech was laced with such poor English such as "dem, dese and dose." Having heard Ms. Agonafer's speech at some length during her trial testimony, this Court finds such a claim highly implausible.

The interview panel also concluded that plaintiff had failed to answer correctly "5 out of 8 questions, and was barely passable on 2 others." Based on the panel assessment, plaintiff was denied the promotion.

All panel members conceded that the panel was not in possession of any model answers prior to embarking on the interview, and in fact, correct answers were completely subjective. Mr. Schultz testified that the questions were written out before the interview. He also testified that it was standard operating procedure to staple together all documents from an interview, including such questions. However, no copy of Ms. Agonafer's questions was produced at either the EEOC administrative hearing in 1993 or at this trial. Extensive secondary testimony was elicited by both sides to show the content of the questions asked of Ms. Agonafer, and her responses. This Courts finds it more likely than unlikely that the panel's version of Ms. Agonafer's responses were mis-characterizations of her actual responses. Even taking the panel's version on its face, such responses appeared valid, and more often than not, the proffered reasons for their incorrectness were semantical at best.

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