Carol D. Redmon, Complainant,v.Hearing No. 250-95-8126X Janice R. Lachance, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionAug 25, 2000
05991100 (E.E.O.C. Aug. 25, 2000)

05991100

08-25-2000

Carol D. Redmon, Complainant, v. Hearing No. 250-95-8126X Janice R. Lachance, Director, Office of Personnel Management, Agency.


Carol D. Redmon, )

Complainant, ) Request No. 05991100

) Appeal No. 01990627

v. ) Agency No. 94-32

)

Hearing No.

250-95-8126X

Janice R. Lachance, )

Director, )

Office of Personnel Management, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On August 12, 1999,<1> Carol D. Redmon (complainant) timely initiated

a request to the Equal Employment Opportunity Commission (Commission)

to reconsider the decision in Carol D. Redmon v. Office of Personnel

Management, EEOC Appeal No. 01990627 (July 9, 1999).<2> EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 64 Fed. Reg. 37,644, 37,656 (1999)

(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.405(b)). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following two criteria: the appellate decision involved a clearly

erroneous interpretation of material fact or law; or the decision will

have a substantial impact on the policies, practices or operations of

the agency. Id. For the reasons set forth herein, complainant's request

is GRANTED in part.

ISSUES PRESENTED

The issue presented is whether the appellate decision involved a clearly

erroneous interpretation of material fact or law when it identified two

claims raised by the complaint; affirmed the dismissal of �claim 1� for

untimely EEO counselor contact; and affirmed the dismissal of �claim 2�

for failure to state a claim.

BACKGROUND

When the matters at issue arose, the complainant was employed as a

Supervisory Staff Attorney by the Social Security Administration (SSA)

in Knoxville, Tennessee. On March 29, 1993, the Office of Personnel

Management (agency) opened the Administrative Law Judge (ALJ) Examination

on a continuous basis (Announcement No. 318). The complainant submitted

a Supplemental Qualifications Statement and other application materials

to the agency pursuant to Announcement No. 318 and subsequently completed

two additional portions of the ALJ Examination: a Panel Interview and

a Written Demonstration. Meanwhile, the agency completed a fourth

Examination component, the Personal Reference Inquiry. On October

23, 1993, the complainant received a Final Rating Notice informing

her that the agency had placed her on the Register of ALJ Eligibles

(ALJ Register) with a total score of 73.9. On November 8, 1993,

the complainant requested that the agency's ALJ Ratings Appeals Board

reconsider her final rating, alleging among other things that the ALJ

Examination process discriminated against her based on gender and age.

While her ratings appeal was pending, on or about March 3, 1994, the

complainant learned that SSA had hired individuals for ALJ positions

from a Certificate of Eligibles the agency had prepared for SSA from

the ALJ Register. The complainant contacted an EEO counselor at SSA

who recommended that she seek counseling from the agency. On March

10, 1994, the complainant informed an agency EEO counselor that she

believed she had not been selected for an ALJ position on March 3, 1994,

because she had received a non-competitive final rating on the agency's

ALJ Examination. According to the Counselor's Report, the complainant

alleged that the agency's administration of the ALJ Examination was

intentionally discriminatory against women and that the ALJ Examination

also had an adverse impact on women over 40.<3>

On March 24, 1994, the agency's Appeals Board informed the complainant

that it was not changing her final rating. The Board also informed

the complainant that she could recompete in any of the parts of the

examination one year after her receipt of the Notice of Rating.

On July 3, 1994, the complainant filed a formal complaint alleging

discrimination based on her sex and age. The complaint identified the

most recent date of the alleged discrimination as June 1994, when new

ALJs were hired.

The agency acknowledged receipt of the complaint on July 27, 1994.

The acknowledgment letter indicated that the complainant had alleged that

the agency discriminated against her based on her sex and age regarding

unfair test scores and the rating process used to score her application

for the ALJ position. The letter indicated that the complainant also

alleged that the agency had administered the examination process in an

arbitrary and capricious manner with discriminatory effects on women

over 40 years of age.

The complainant subsequently retook parts of the ALJ Examination. On July

5, 1995, the agency notified the complainant that her new final rating

was 81.0. On October 22, 1995, the agency revised the rating to 81.6.

On June 18, 1996, the agency again notified the complainant that her

ALJ rating had been changed and that the new rating, 87.1, superseded

any previous notice she had received. The record demonstrates that in

1996, the agency reviewed the applications of all the ALJ Examination

candidates following an investigation by the agency's Inspector General

(IG). The IG's investigation determined that a number of a rating

official's signatures for the Supplemental Qualifications Statement

portion of the ALJ Examination in 1993 had been forged.

Meanwhile, the agency investigated the instant complaint and notified the

complainant of her right to request a hearing before an Administrative

Judge. The complainant requested a hearing. On July 13, 1998, while

the complainant's Motion to Compel Discovery was pending before the

Administrative Judge, the agency moved that the complaint be dismissed.

The Administrative Judge granted the agency's motion based on the agency's

contentions and remanded the complaint to the agency for dismissal.

The agency issued its final decision on October 2, 1998. Therein,

the agency determined that the complainant alleged that the agency

discriminated against her based on her sex and age when she was not

selected for an ALJ position, and the complainant also alleged unfair test

scores and rating process. The decision indicated agreement with the

Administrative Judge that the nonselection �allegation� failed to state

a claim because the complainant failed to show that the agency named in

the complaint had failed to select her for a position. The decision

also agreed that the ALJ Examination claim was untimely because the

complainant's initial EEO contact occurred almost five months after

her receipt of her ALJ Examination scores, and almost four months after

she had evidenced in her Appeals Board appeal her belief that her ALJ

Examination scores were discriminatory. The decision further agreed that

the Appeals Board appeal was insufficient to constitute initiation of

the EEO process because the individuals processing the internal appeal

were not shown to be individuals that were �logically connected� with

the EEO process.

On appeal, the complainant contended, among other things, that she had

raised two claims in her EEO complaint: (1) disparate treatment on the

complainant based on her gender and age in the ALJ examination; and (2)

disparate impact in that the ALJ examination, as designed and administered

by the agency, discriminates on the basis of gender and age and does

not comply with the Uniform guidelines on Employee Selection Procedures

(1978) (UGESP). The complainant contended that only the first claim had

been addressed in the dismissal decision. The complainant renewed her

contention that the agency should not have dismissed her complaint because

the agency's design, implementation, and scoring of the ALJ examination

was an ongoing discriminatory process. The complainant further contended

that the Commission should not require her to file a new complaint for

each new or amended rating on each of the multiple occasions on which

the agency prepares a register or certificate of candidates. Finally,

the complainant contended that to affirm the dismissal of her complaint

would require her to undergo the discriminatory process again before

refiling her complaint.

The appellate decision noted that the final agency decision identified

two claims of discrimination based on sex and age: (1) the rating and

scoring process used by the agency in evaluating qualifications for ALJ

positions was unfair; and (2) she was not selected for an ALJ position.

As to �claim 1,� the appellate decision indicated that the Commission has

adopted a �reasonable suspicion� standard to determine when the 45-day

time limitation for EEO counselor contact is triggered. The decision

also indicated that in determining whether a continuing violation is

present, it is important to consider whether the complainant had prior

knowledge or suspicion of discrimination and the effect of this knowledge.

The appellate decision found that the complainant had not shown that

she contacted an agency EEO counselor or even the SSA counselor within

the requisite 45 days of her suspicion of discrimination. The appellate

decision rejected the complainant's contention that because the selection

process and the certification of ALJ eligibles by the agency were ongoing

processes, the discrimination continued each time she received a new

rating and each time the agency certified eligibles for ALJ positions

to employing agencies. The appellate decision found that the agency's

subsequent ratings of the complainant and the certification of eligibles

were not independent acts that could be used to trigger a new limitations

period, but rather, were actions that resulted from the original rating

alleged to be discriminatory. In addition, the appellate decision found

the continuing violation theory inapplicable because the complainant

suspected discrimination in November 1993. The appellate decision

further found that the complainant's initiation of the Appeal Board

appeal did not toll the time limitation for EEO counselor contact.

Finally, the appellate decision found that �claim 2� failed to state

a claim because the complainant had not shown that the agency failed to

select her for an ALJ position.

On request for reconsideration, the complainant contends, among

other things, that the appellate decision involved clearly erroneous

interpretations of material fact and law. Specifically, the complaint

contends that the appellate decision misstated the issues raised in

her complaint and failed to understand that she is challenging unlawful

employment practices by the agency as gatekeeper to all ALJ selections.

In addition, the complainant contends that the appellate decision's

finding of untimeliness was based on a misinterpretation of law regarding

her continuing violation claim.

ANALYSIS AND FINDINGS

The Commission finds that the appellate decision contains a clearly

erroneous interpretation of material fact as to the definition of

the claims raised by the July 3, 1994 complaint, and also contains an

erroneous interpretation of continuing violation law as it applies to

the complaint claims. Therefore, the Commission grants the complainant's

request for reconsideration of the appellate decision.

Definition of Complaint Claims Against the Agency

The agency's formal complaint form does not provide a space for

complainants to describe their claims of discrimination. The form asks

only that complainants identify the allegedly discriminating agency

office, the date of the most recent alleged discrimination, and the

bases of the alleged discrimination. Under these circumstances, the

Commission must look to the EEO Counselor Report to determine the claims

raised by the complaint at issue. The EEO Counselor's Report indicates

that the complainant alleged she was not selected for a position as an

ALJ on March 3, 1994, because she had received a non-competitive final

rating on the agency's ALJ Examination. According to the Counselor's

Report, the complainant also alleged that the agency's administration

of the ALJ Examination was intentionally discriminatory and that the

ALJ Examination also had an adverse impact on women over 40. Based on

the EEO Counselor's Report and on the complainant's formal complaint

identification of the Office of Administrative Law Judges (OALJ) as the

office responsible for the alleged discrimination, the Commission finds

that the complainant alleged both disparate treatment discrimination

and/or disparate impact discrimination regarding the agency's design,

implementation, and scoring of the ALJ Examination.

Timeliness of the EEO Counselor Contact

EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (redesignating EEOC

Regulation 29 C.F.R. � 1614.107(b) as 29 C.F.R. � 1614.107(a)(2))

requires agencies to dismiss a complaint or a portion of a complaint

which fails to comply with the time limitations set forth in 29 C.F.R. �

1614.105(a). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that an

aggrieved person initiate contact with an EEO counselor within 45 days

of the date of the matter alleged to be discriminatory or, in the case

of a personnel action, within 45 days of the effective date of the action.

However, the Commission repeatedly has held that the normal time limit for

contacting an EEO counselor may be suspended when a complainant alleges

facts sufficient to constitute a continuing violation. See, e.g.,

Johnson v. Social Security Administration, EEOC Request No. 05950288

(June 27, 1996); Woljan v. Environmental Protection Agency, EEOC

Request No. 05950361 (October 5, 1995); Ford v. Department of Health

and Human Services, EEOC Request No. 05940606 (October 27, 1994).

A continuing violation is a series of interrelated discriminatory

acts, at least one of which falls within the filing period, or the

maintenance of a discriminatory system or policy before and during the

filing period. Id.; Valentino v. United States Postal Service, 674

F.2d 56, 65 (D.C. Cir. 1982); accord: Jensen v. Frank, 912 F.2d 517,

522-23 (1st Cir. 1990) (serial and systemic continuing violations);

and Haithcock v. Frank, 958 F.2d 671, 678 (6th Cir. 1992) (evidence

of present discriminatory activity or a longstanding and demonstrable

policy of discrimination).

In cases where a system or policy of discrimination is sufficiently

alleged, it is the ongoing program of discrimination, rather than

any of its particular manifestations, that is the subject of attack.

Reed v. Lockheed Aircraft Corp, 613 F.2d 757, 762 (9th Cir. 1989);

Shehadeh v. Chesapeake and Potomac Telephone Co. of Maryland, 595 F.2d

711, 724-25 (D.C. Cir. 1978). Thus, when an employee sufficiently

alleges that the employer operates a discriminatory system, policy,

or employment practice which is maintained into the 45-calendar-day

time period for EEO counselor contact, the employee's EEO counselor

contact may be deemed timely even though the employee has not been

denied a specific employment benefit within the 45-calendar-day period.

Oltmans v. Department of the Treasury, EEOC Request No. 05910890

(March 19, 1992); accord: Beavers v. American Cast Iron Pipe Co., 975

F.2d 792, 797-98 (11th Cir. 1992) (insurance coverage policy); Rendon

v. AT&T Technologies, 883 F.2d 388, 395-96 (5th Cir. 1989) (allegedly

discriminatory promotion system); Serpe v. Four-Phase Systems, Inc.,

718 F.2d 935, 937-38 (9th Cir. 1983) (allegedly discriminatory transfer

system); and Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241,

249 (5th Cir. 1980) (allegedly discriminatory employment test).

To hold otherwise would require employees to delay the filing of their

informal EEO complaints until the employer subjects them to additional

acts of alleged discrimination. Douglas et al. v. Department of the Army,

EEOC Appeal Nos. 01964846 et al. (July 1, 1997). Such delays would

thwart the primary objective of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e et seq., which the Supreme Court has

described as a "prophylactic one�: �to achieve equality of employment

opportunities and remove barriers that have operated in the past to

favor an identifiable group of white employees over other employees."

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975), quoting Griggs

v. Duke Power Co., 401 U.S. 424, 429-430 (1971). See also 29 C.F.R. �

1614.102(a) (EEO program requirements). Unnecessary delays in EEO

counselor contact may also result in increased employer liability for

additional acts of discrimination which the employer could prevent if

alerted to the systemic nature of the alleged discrimination. Douglas,

supra.

It is undisputed that the agency continued to accept applications and to

administer the ALJ Examination as of the date of the complainant's EEO

counselor contact. Moreover, applicants who received a final eligible

rating under Announcement 318 were permitted to file new applications

under the same announcement one year after the issuance of their eligible

ratings. The record also demonstrates that the agency opposed discovery

requests in 1996 in part because, purportedly, disclosure of the requested

documents would destroy the usefulness of the ALJ Examination, force the

agency to close the ALJ Examination, and require the agency to develop a

new examination. Based on this information, the Commission finds that the

administration of the allegedly discriminatory ALJ Examination was ongoing

at the time of the complainant's EEO counselor contact. Because the

complainant is challenging allegedly discriminatory employment practices,

i.e, the design, implementation, and scoring of the ALJ Examination,

that continued within the 45-calendar-day time period for EEO counselor

contact, the Commission finds the complainant's EEO counselor contact

was timely even though she did not receive an ALJ Examination Rating

Notice within the 45-day period that preceded her March 10, 1994 EEO

counselor contact. See Gonzalez, supra.

The Commission also finds that the complainant was, and continues to be,

adversely affected by the continuing administration of the allegedly

discriminatory ALJ Examination. The record demonstrates that even after

the complainant received her first Notice of Final Rating in October 1993,

the agency continued to add additional applicants to the Register based

on new ratings derived from the administration of the same allegedly

discriminatory ALJ Examination.<4> It appears that the complainant's

relative placement on the Register continued to change based on the

agency's continuing administration of the allegedly discriminatory ALJ

Examination. The complainant's relative placement on the Register was

affected again when she retook portions of the ALJ Examination, resulting

in new ratings in July 1995 and October 1995, and when the agency, sua

sponte, changed numerous ratings, including the complainant's rating,

on or about June 1996. The complainant's relative placement on the ALJ

Register is important because the agency issues Certificates of Eligibles

to agencies that want to hire individuals for ALJ positions. The agency

derives each Certificate of Eligibles from the ALJ Examination applicants'

relative placements on the ALJ Register at the time a Certificate of

Eligibles is compiled.

Avoidance of Fragmentation of Complaints

The complainant contended on appeal that the Commission should not

require her to file a new complaint for each new or amended rating.

The Commission agrees. As explained in the introduction to the revised

1614 Regulation, the Commission believes that agencies are not properly

distinguishing between factual allegations in support of a legal claim

and the legal claim itself, resulting in the fragmentation of some claims,

including claims that are especially susceptible to fragmentation such as

harassment claims and continuing violation claims. 64 Fed. Reg. 37,644,

37,648 (1999). The fragmentation of claims is undesirable because

it unnecessarily multiplies complaints and can improperly render

non-meritorious, otherwise valid and cognizable claims. Id.

The revised 1614 Regulation, found at 64 Fed. Reg. 37,644, 37,656 (1999)

(to be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.106(d), provides that a complainant may amend a complaint at any time

prior to the conclusion of the investigation to include �issues or claims�

like or related to those raised in the complaint. The same regulation

provides that after requesting a hearing, a complainant may file a motion

with the administrative judge to amend a complaint to include �issues

or claims� like or related to those raised in the complaint. A claim

is an assertion of an unlawful employment practice or policy for which,

if proven, there is a remedy under the federal equal employment statutes.

EEO Management Directive (MD) 110, as revised, November 9, 1999 (EEOC-MD

110), Chapter V., Section III.A.1 at 5-5.

In the instant case, the Commission finds that the complainant's 1995

and 1996 ratings constitute new instances when she was subjected to

the same allegedly discriminatory ALJ Examination challenged in her

July 3, 1994 complaint. The Commission finds that the complainant

is not raising new �issues or claims� of discrimination, but rather,

points to additional occasions when she was subjected to one or more

of the same allegedly unlawful employment practices she challenged in

her July 3, 1994 complaint, i.e., disparate treatment and disparate

impact discrimination in the design, implementation, and scoring of the

ALJ Examination. Therefore, the Commission finds that the complainant's

1995 and 1996 ratings should be treated as new incidents that are part

of her existing discrimination claims. See generally, EEOC-MD 110,

Chapter V, Section III.B.1. at 5-10.

�Claim 2"

Finally, the appellate decision found that �claim 2� failed to state a

claim against the agency because the complainant had not shown that the

agency failed to select her for an ALJ position. As discussed above,

the agency's EEO Counselor's Report indicates that the complainant

alleged she was not selected by the SSA for a position as an ALJ on

March 3, 1994, because she had received a non-competitive final rating

on the agency's ALJ Examination. We note, however, that the agency did

not make the decision not to select complainant and the agency was not

responsible for the nonselection action at issue. Therefore, we find

that the previous decision properly found that �claim 2" failed to state

a claim against the agency.

CONCLUSION

After a review of the complainant's request for reconsideration,

the appellate decision, and the entire record, the Commission finds

that the request meets the criteria of 29 C.F.R. � 1614.405(b), and

it is the decision of the Commission to GRANT the request in part.

The decision of the Commission in Appeal No. 01990627 (July 9, 1999) is

hereby REVERSED in part; the final agency decision is hereby REVERSED

in part; and �claim 1" is REMANDED for further processing in accordance

with the ORDER below. The dismissal of �claim 2" remains AFFIRMED.

There is no further right of administrative appeal on the decision of

the Commission on a Request to Reconsider.

ORDER

Within five (5) calendar days of the date it receives this Decision and

Order, the agency shall send a letter to the Washington Field Office (WFO)

notifying the WFO of the Commission's intent that the complainant's July

3, 1994 complaint be docketed and assigned to an Administrative Judge

for processing. The agency shall attach a copy of this Decision and

Order to its docketing and assignment request letter.

Within fifteen (15) calendar days of the date the agency receives this

Decision and Order, or within twenty (20) calendar days of the date this

Decision and Order is mailed, whichever occurs first, the agency shall

forward the complaint file to the WFO.

Within thirty-five (35) calendar days of the date this decision and Notice

are mailed, the agency shall send to the Compliance Officer referenced

below: a copy of the agency's docketing and assignment request letter,

and proof that the complaint file has been received by the WFO.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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:

August 25, 2000

_______________ ______________________________

Date Frances M. Hart

Executive Officer Executive Secretariat

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,

and the agency on:

DATE

Equal

Employment

Assistant1The

complainant

initially

sent

her

request

for

reconsideration

to

the

agency

and

to

the

Commission's

Washington

Field

Office

on

August

12,

1999.

She

resubmitted

her

request

to

the

Commission's

Office

of

Federal

Operations

on

August

27,

1999.

2On 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 request. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

3According to the Counselor's Report, an agency official maintained that

the ALJ Examination was not designed to discriminate. He indicated,

however, that the Examination placed individuals with limited trial or

courtroom experience at a disadvantage.

4According to the affidavit of the OALJ Director, prepared on November 23,

1994, the OALJ was in the process of completing a third examining cycle.