0720080005
10-23-2009
Constance Carter, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Constance Carter,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720080005
Hearing No. 120-1997-04655X
Agency No. 95-0241-SSA (BOS-95-241)
DECISION
Following its October 4, 2007 final order, the agency filed an appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of 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 agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ. For the following
reasons, the Commission REVERSES the agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the agency issued its final
order and filed its appeal in a timely manner; (2) whether the EEOC
Administrative Judge's (AJ) decision, finding that complainant was
subjected to discrimination based on her sex when she was not selected
for two Administrative Law Judge (ALJ) positions in Little Rock, Arkansas
and New Haven, Connecticut, is supported by substantial evidence in the
record; and (3) whether the AJ properly awarded complainant $30,000.00
in non-pecuniary compensatory damages.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Supervisory Staff Attorney, GS-13, at the agency's Office of
Hearing and Appeals (OHA) in Boston, Massachusetts. In 1993, complainant
submitted an application to the Office of Personnel Management (OPM)
for an ALJ position with a federal agency. Complainant's application
was processed by the OPM, and she was deemed qualified for the position
with a rating score of 87.4. Complainant indicated in her application
that she was willing to accept an ALJ position anywhere in the country.
Based upon a needs assessment conducted by the agency for ALJs in various
localities nationwide, OPM forwarded a list of eligible candidates to
the OHA in May 1994. This list, Certificate AJ-94-14, included eligible
candidates ranked by OPM in numerical order based on their rating scores.
Complainant was ranked number 144 out of 213 candidates. In August
1994, OHA requested a second certificate of eligible candidates from
OPM, Certificate AJ-94-15. Complainant was ranked number 93 out of
190 candidates.
After she was certified by OPM, the agency sent complainant a letter
informing her of her certification for consideration for an ALJ position;
asking her to rank her locality preferences for each certificate; stating
that, if selected, she was expected to remain employed at that location
for at least two years before requesting reassignment; and notifying her
that personal interviews would be conducted for any candidates that hadn't
been previously interviewed. Complainant submitted her preference list,
ranking all of the available localities.
The interviews were conducted in Falls Church, Virginia by the Acting
Chief ALJ (RMO1), or the Acting Deputy Chief ALJ (RMO2), the Regional
Chief ALJ for Dallas, Texas (RMO3), and the Regional Chief ALJ for the New
York Region (RMO4). RMO1 indicated that the interview is a significant
factor in the selection process when the top three candidates for a
position opening have very close OPM scores. During the interview,
the panelists asked the candidates a set list of questions and gave
each candidate a composite group score for his/her interview based on
a scale of 1 to 10 points. RMO1 considered individuals that scored
7 points "borderline" candidates for selection, and those that scored
over 8 points were considered to be good candidates. Complainant was
interviewed in January 1994 by RMO2, RMO3, and RMO4, and the panel gave
her a composite interview score of 7 points.
Once candidates submitted their geographic preferences, the agency
went down the list of localities with position openings and matched
each vacancy with candidates that had expressed an interest in working
in that particular locality.1 Based solely on their OPM scores, the
agency selected the top candidates who had expressed an interest in
each locality for an interview. Under the agency's "rule of three,"
the top three candidates for each locality would compete against each
other to fill the vacancy. Candidates not selected for a position would
be placed back into the applicant pool for consideration for the next
two geographic locations of their preference (generally each candidate
would only be considered for three position openings). Complainant was
considered for ALJ position openings in Billings, Montana; San Antonio,
Texas; and Little Rock, Arkansas under Certificate AJ-94-14 and New
Haven, Connecticut; Dallas, Texas; and Hattiesburg, Mississippi under
Certificate AJ-94-15.
RMO1 and RMO2 determined the top candidate for each position, and RMO1
then submitted a final recommendation to the Commissioner through the
Office of the Associate Commissioner or the Deputy Commissioner for
Programs. Generally, RMO1's final recommendation determined who would
be selected. Complainant was not selected for any of the aforementioned
positions.
On February 23, 1995, complainant filed an EEO complaint alleging, in
pertinent part, that she was discriminated against on the basis of sex
(female) when:
(1) On October 4, 1994, she was not selected for the position of ALJ in
the OHA under Certificate AJ-94-15;
(2) She was not selected for the position of ALJ in the OHA, under
Certificate AJ-94-15. On November 14, 1994, she became aware that
candidates with lower scores were selected;
(3) The OHA conducted a pre-hiring interview for the ALJ position (which
she completed in January 1994) that is contrary to OPM's employment
practices, supplants OPM requirements, and is discriminatory against
women; and
(4) One of the ALJ panel interviewers failed to disqualify himself from
her January 1994 panel interview.
The agency ultimately accepted claims (1) and (2) for investigation
and dismissed claims (3) and (4) for untimely EEO Counselor contact.
On appeal, the Commission affirmed the dismissal of claims (3) and (4).
Carter v. Social Security Administration, EEOC Appeal No. 01953660
(August 27, 1996).
At the conclusion of the investigation of claims (1) and (2), complainant
was provided with a copy of the report of investigation and a notice
of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing.2 An AJ assigned to the
case held a hearing January 15-16, 2003.
On March 13, 2007, the AJ issued an Interim Decision, finding that
complainant was subjected to sex discrimination with respect to two of
the non-selections. The AJ's decision found that complainant failed to
establish a prima facie case of sex discrimination with regard to the
Billings and Dallas vacancies since female candidates were selected for
both positions. However, the AJ found that complainant established a
prima facie case of sex discrimination with regard to the San Antonio,
Little Rock, New Haven, and Hattiesburg non-selections since she belonged
to a protected group; she was qualified for the positions in question;
she was not selected despite being qualified for the positions; and
other candidates outside her protected class were selected.
The AJ found that the agency provided legitimate, nondiscriminatory
reasons for not selecting complainant for all four positions.
Specifically, RMO1 stated that the selectee for the San Antonio position
was chosen because he was a veteran preference eligible candidate,
and the agency was required to select him based upon OPM requirements.
He stated that the remaining selectees were all chosen because the
interview panel gave them scores of 8 or 9 points; they were all well
qualified; and each candidate demonstrated the ability to succeed in
the OHA office environment. RMO2 stated that complainant's interview
responses caused her to question whether complainant would stay in
one geographic region for two or more years, show sensitivity towards
claimants, and be responsive to agency management. RMO2 also stated
that officials who supervised complainant gave her negative references.
The AJ found that complainant established that the agency's reasons for
not selecting her for the Little Rock and New Haven positions were a
pretext for unlawful sex discrimination. The AJ's decision found "the
highly subjective nature of the panel's evaluation of the Complainant's
performance, abilities, and conduct to be totally inconsistent with her
performance evaluations that objectively rated her as outstanding in
the specific areas that caused the panel not to recommend (and select)
the Complainant." The AJ stated that "I also find it hard to believe
that the Complainant would refuse to stay in one geographic location
for more than two years as a reason for giving her fewer points on the
interview when she had already demonstrated in the past of her willingness
to relocate..."
Regarding the San Antonio and Hattiesburg non-selections, the AJ found
that complainant failed to establish that the agency's reasons for its
actions were a pretext for sex discrimination. The AJ found that the
agency was required to select a particular candidate for the San Antonio
position because he was a preference eligible candidate based on his
veteran's status. The AJ also found that "the undisputed record shows
that the [Hattiesburg] selectee . . . scored higher than the Complainant
in the OPM score as well as with interview panel's scores," and agency
witnesses credibly testified that the selectee was chosen because of
his strong credentials and suitability for the position.
On August 7, 2007, the AJ issued a Final Decision awarding complainant
a position in either the Little Rock or New Haven offices, along with
backpay, seniority, and other emoluments associated with the position.
The AJ further awarded complainant $30,000.00 in non-pecuniary
compensatory damages, $95,095.80 in attorney's fees, and $6,288.32
in costs. The AJ also ordered the agency to ensure that discrimination
will not occur in the future and to post a notice in the Regional OHA
in Boston, Massachusetts.
On August 25, 2007, the agency issued a final order rejecting the
AJ's finding that complainant proved that she was subjected to sex
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, the agency argues that the AJ erred in finding that complainant
was discriminated against based on her sex when she was not selected for
the Little Rock and New Haven ALJ positions. In support of its position,
the agency argues that the AJ improperly attributed a discriminatory
motive to the agency's use of subjective criteria in its ALJ selection
process and improperly relied upon complainant's performance evaluations
as evidence of pretext. The agency does not dispute the attorney's fees
and costs awarded complainant but contests the size of the compensatory
damages award.
In response, through her representative, complainant argues that the
agency's appeal should be denied because the agency's October 4, 2004
final decision and appeal were untimely. Assuming arguendo that the
final decision and appeal were timely, complainant urges the Commission
to reverse the agency's final decision and affirm the AJ's decision
in its entirety. Complainant argues that the agency failed to dispute
any of the AJ's factual findings. She argues that the agency has not
met its burden of proving that the AJ's findings of determination are
not supported by substantial evidence in the record or that there is
countervailing evidence in the record supporting a reversal of the
AJ's credibility findings. She further argues that the AJ's finding
of pretext with respect to the Little Rock and New Haven non-selections
was correct and that the proper remedies were awarded.3
ANALYSIS AND FINDINGS
As an initial matter, we must first address whether the agency issued
its final order and filed its appeal in a timely manner. Pursuant to 29
C.F.R. � 1614.110(a), the agency is required to take final action on the
complaint by issuing a final order within forty (40) days of receipt of
the hearing file and the AJ's decision. If an agency decides not to fully
implement the decision of an AJ, the agency must issue a final order and
simultaneously file an appeal with the Commission in accordance with 29
C.F.R. � 1614.403. Id. If the agency does not issue a final order and
file an appeal simultaneously with the issuance of the order, the AJ's
decision will be deemed ratified by the agency upon the expiration of the
agency's 40-day period for accepting or not accepting the AJ's decision.
EEO-MD-110, Chapter 9, � III(B)(1) n.4 (November 9, 1999).
A review of the record reveals that the agency received a copy of
the hearing file and the AJ's August 7, 2007 Final Decision on August
25, 2007. The agency subsequently issued its final order and filed
the instant appeal on October 4, 2007, which was within the 40 day
limitation period. Although complainant argues that the agency's appeal
was untimely because the agency should have received the hearing file
and the AJ's decision prior to August 25, 2007, the record contains
a copy of the AJ's decision date stamped by the agency on August 25,
2007 as well as an affidavit from an agency official who stated that
she received the hearing file and the AJ's decision and processed the
paperwork on that date. Furthermore, there is no evidence in the record
establishing that the agency received the materials in question prior
to August 25, 2007. Therefore, we find that the agency issued its final
order and filed its appeal in a timely manner.
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 Board, 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a prima facie case of sex discrimination,
complainant must show: (1) she is a member of a protected class; (2)
she was qualified for the position; (3) she was not selected for the
position; and (4) she was accorded less favorable treatment from that
given to persons otherwise similarly situated. See McDonnell Douglas,
411 U.S. at 802; Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). We concur with the AJ that complainant
established a prima facie case of sex discrimination when she was not
selected for the Little Rock and New Haven ALJ positions because she
belonged to a protected class; she was found to be qualified for the
positions; she was not selected despite being qualified for the positions;
and other candidates outside her protected class were selected.
The Commission also concurs with the AJ's determination that the agency
articulated legitimate, nondiscriminatory reasons for not selecting
her for the Little Rock and New Haven positions. RMO2 testified at
the hearing that, once the top three candidates were identified for a
particular ALJ position opening, the interviews were the decisive factor
in making the selection. RMO1 and RMO2 testified that complainant was
not selected because she was not the most qualified candidate for the
positions based on the recommendation of the interview panel.
RMO1 and RMO2 testified that the panelists were looking for certain
qualities during the interviews, including the ability to relate well
to claimants and in the hearing office setting, the ability to handle
a high volume of cases, and a willingness to remain in a particular
locality for two or more years. RMO1 and RMO2 gave a rating score of
9 points to the selectee for the Little Rock position. RMO1 testified
that the selectee seemed hard-working; had good people skills; appeared
to be able to work well in the hearing office environment and adhere to
procedures as well as the chain of command; had a "clear understanding"
of what the agency was looking for in terms of having empathy for the
clientele they served; and committed to relocate anywhere mentioned
"without reservation." Similarly, RMO2 stated that the selectee
worked well with people, seemed sensitive to claimants, and expressed
a willingness "in no uncertain terms" to go relocate to a new location
and stay there. Regarding the New Haven ALJ position, RMO1 testified
that he gave a rating score of 8 points to the selectee. He stated that
the selectee had significant adjudication experience, was "well-prepared
professionally," and appeared to be an individual "who would blend well
into our hearing offices environment."
RMO2 testified that her interview with complainant left her with
reservations about complainant's willingness to remain in a locality
for two or more years, her ability to relate well to claimants during
hearings, and her responsiveness to agency management. RMO2 further
testified that she contacted the Regional Chief ALJ for New England,
complainant's second level supervisor, and a Regional Management Officer
to obtain references from people who had worked with complainant.
She stated that the officials provided negative references.
Complainant now bears the burden of proving by a preponderance of the
evidence that the agency's articulated reasons were a pretext for sex
discrimination. Pretext may be shown either directly by showing that a
discriminatory reason more likely motivated the employer or indirectly
"by showing that the employer's proffered explanation is unworthy
of credence." Burdine, 450 U.S. at 256. Rejection of the employer's
proffered reason permits the trier of fact to "infer the ultimate fact
of intentional discrimination." Hicks, 509 U.S. at 511.
Upon review, the Commission finds that substantial evidence in the record
supports the AJ's determination that the agency's articulated reasons for
not selecting complainant for the Little Rock and New Haven ALJ positions
are unworthy of belief. We concur with the AJ's determination that
"the record is replete with vague perceptions, intuitions, and feelings
that were not premised upon the objective record."
RMO2 testified that complainant was not selected, in part, because she
was concerned with complainant's willingness to take on an assignment in
a particular location and stay for a two-year period. RMO2 noted that
complainant stated during her interview that she was willing to relocate
anywhere, if necessary, and "make the sacrifice" with the intention of
getting her husband a transfer later on. This suggested to her that
complainant could be a "problem" ALJ in the future who would attempt to
leave either locality before the conclusion of her two year commitment.4
However, the AJ found that complainant credibly testified at the hearing
that she had expressed to the interview panel in no uncertain terms that
she would be willing to accept any of the available ALJ positions and
remain there for at least two years. She had also informed the panel
members that she had previously relocated to Illinois for over three years
to accept an attorney position with the OHA. Additionally, complainant
was informed of the agency's two year minimum requirement when she was
informed of her certification by OPM, and she returned her locality
preference list ranking all available geographic locations nationwide.
RMO2 also testified that complainant's interview performance left her
with concerns about complainant's "temperament," or how she related
to staff and the types of claimants the agency sees on a daily basis,
and her ability to be responsive to agency management. With respect
to complainant's attitude toward claimants, RMO2 testified that she
felt complainant failed to "volunteer information" during her interview
indicating that she was sensitive to the particular type of claimants
that would be before her as an ALJ. However, complainant testified that
she informed the panel during the interview that she was sensitive to the
fact that ALJs often deal with unsophisticated and disabled claimants.
The AJ found complainant's testimony regarding her empathy towards
claimants more credible than RMO2's testimony, noting that RMO2 was
unable to clearly explain any basis for her concern beyond her own
subjective impression. Moreover, complainant's performance appraisals
in the record clearly state that she worked well with members of the
public and had strong interpersonal skills. We find no evidence in the
record that undermines the AJ's credibility determination.
RMO2's concern regarding complainant's responsiveness to agency management
was premised on negative references she received from agency officials
that worked with complainant as well as vague feelings and opinions
she developed during complainant's interview. RMO2 testified that the
Regional Chief ALJ for New England indicated that complainant had the
ability to do the work but was "selfish in her approach, anti-management,
not a team player," and the Regional Management Officer was in agreement.
However, RMO2 did not recall any examples of these traits that were
provided by the officials, and affidavits provided by the two officials
contradict her testimony.5 The Regional Chief ALJ for New England stated
in his affidavit that he could not recall speaking with RMO2 about
complainant's performance. He stated that he signed [complainant's]
appraisals as a reviewing official and would have no reason to question
the outstanding ratings "unless I had a specific reason or knowledge of
the employee." The Regional Management Officer provided an affidavit
stating that he had no recollection of speaking with RMO2 regarding
complainant's work performance. He stated that he "would not use the
terms or comments . . . such as anti-management, or selfish. I probably
would have said that [complainant] was a good attorney, with excellent
writing skills." Although he stated that complainant's management skills
could use improvement, he noted that there were management problems in
the entire hearings office. He also stated that he could not "recall
ever having any problems with her personally."
We note that complainant's performance appraisals and awards given
to complainant during the relevant time period further contradict
RMO2's testimony that complainant appeared to be "anti-management."
These appraisals reflect that complainant consistently performed at
an "outstanding" level and demonstrated an ability to work well with
management, provide sound leadership to agency personnel under her
supervision, and deal well with outside stakeholders and the public.
Her 1991 performance appraisal indicated that "[complainant] has
been a resource person not only for the employees under her direct
supervision but for all hearing office and regional employees" and
that she "displays outstanding personal and interpersonal work habits.
Her work is of the highest qualities and she enhances the work of
those she supervises. Her interpersonal skills are extraordinary."
Her 1994 and 1993 performance appraisals reflected outstanding ratings
and included similar language regarding her ability to work well with all
agency employees in the hearing office environment. Although the agency
argues on appeal that the interview panel members were not aware of the
ratings/comments on her performance appraisals because they were not
provided with copies of the appraisals, the record reflects that RMO4,
who served on the interview panel, signed complainant's 1990 and 1991
performance appraisals and should have been aware of her outstanding
ratings.
On appeal, the agency argues that the AJ improperly attributed
a discriminatory motive in the agency's use of subjective criteria
in its ALJ selection process and "unnecessarily intruded" into the
agency's subjective promotion decisions. We disagree. Although the
application of subjective criteria in a selection process is permissible,
the Commission recognizes that the use of subjective criteria "may offer
a convenient pretext for unlawful discrimination." O'Brien v. Social
Security Administration, EEOC Appeal No. 07A10034 (October 3, 2001)
(citations omitted). Here, we find that the AJ properly examined the
subjective criteria the agency utilized in the selection process and found
that the agency's rationale for not selecting complainant was pretextual
because the agency's reasons were inconsistent with the objective evidence
in the record and testimony provided at the hearing. RMO2's rationale
for not selecting complainant was contradicted by the evidence, including
statements in the affidavits submitted by the Regional Chief ALJ for New
England and the Regional Management Officer calling into question RMO2's
testimony that they gave complainant negative references. RMO's testimony
at the hearing was also found less credible than complainant's testimony
regarding her sensitivity towards claimants and her willingness to
remain in a locality for two or more years. The Commission notes that
credibility determinations of an AJ are entitled to deference due to the
AJ's first-hand knowledge, through personal observation of the demeanor
and conduct of the witnesses at the hearing. See Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996).
Based on the foregoing, after a careful review of the record, we discern
no basis to disturb the AJ's finding that complainant was discriminated
against based on her sex when she was not selected for the Little Rock
and New Haven ALJ positions.
Turning to the issue of remedies, a job applicant has a right to be free
from discrimination throughout the selection process. If the process is
discriminatory at any phase, the applicant must be awarded full relief,
such as the position retroactively, unless the agency shows by clear
and convincing evidence that even in the absence of discrimination, the
applicant would not have been selected. See DeReyna v. Department of the
Navy, EEOC Appeal Nos. 01980077, 01980078, 01980079 (January 19, 2001).
Thus, complainant is entitled to retroactive placement in the position
unless the agency can show by clear and convincing evidence that, even
absent discrimination, complainant would not have been selected. Id;
see also 29 C.F.R. � 1614.501(c)(1). As discussed above, the agency's
rationale for not selecting complainant is not worthy of belief. As a
result, we find that the agency has not met its burden of establishing,
by clear and convincing evidence, that absent the discrimination against
complainant it still would not have selected complainant. We concur with
the AJ that retroactive placement into an ALJ position in either Little
Rock or New Haven, or a substantially equivalent position, retroactive
to the date of the selections is an appropriate remedy in this case.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. �1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available under Section
102 of the Civil Rights Act of 1991, No. N 915-002 (July 14, 1992).
Respondent must submit evidence to show that the agency's discriminatory
conduct directly or proximately caused the losses for which damages
are sought. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994).
The Commission notes that because there is no precise formula by which
to calculate non-pecuniary damages, the AJ is afforded broad discretion
in determining such damages awards. To be sustained on appeal, an award
of non-pecuniary damages should not be "monstrously excessive" standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F.2d 847, 848 (7th Cir. 1989)).
Upon review, the Commission finds that the record supports the AJ's
award of $30,000.00 in non-pecuniary compensatory damages. The evidence
reflects that the agency's discriminatory actions caused complainant to
suffer emotional pain and suffering, such as embarrassment, humiliation,
severe headaches, long periods of crying, and high blood pressure,
requiring her to take six weeks off from work in 1994. Complainant also
stated that the agency's actions caused her to consider leaving the legal
profession and withdraw from family, friends, co-workers, and social
and professional functions. She submitted declarations from her husband
and daughter addressing how the agency's actions caused her to withdraw,
suffer from depression, and become a "different person." We find that
the agency failed to establish that the award is "monstrously excessive"
standing alone, the product of passion or prejudice, and inconsistent
with the amount awarded in similar cases. See Moore v. Department of
Justice, EEOC Appeal No. 07A60017 (October 17, 2006) (awarding $32,500.00
in non-pecuniary compensatory damages in a non-selection case where
complainant suffered from intense mental anguish, loss of enjoyment
of life, humiliation, injury to reputation, loss of self-esteem,
a lack of energy, and damage to familial relationships due to the
agency's actions); Garrett v. United States Postal Service, EEOC Appeal
No. 07A30024 (February 25, 2004) (awarding $35,000.00 in non-pecuniary,
compensatory damages after finding sex discrimination for non-selection
and failure to transfer where complainant experienced emotional distress,
depression, anger, embarrassment and humiliation, headaches, and sleep
disturbances that were corroborated by a friend).
We further find that the AJ properly awarded complainant $95,095.80 in
attorney's fees and $6,288.32 for associated costs. We note that the
agency states on appeal that it does not contest the AJ's ruling with
respect to the size of the attorney's fees and costs awarded.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the agency's final
order is REVERSED and REMANDED for the agency to take corrective action
in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) Within ninety (90) calendar days of the date of this decision,
complainant shall be placed in either the Little Rock, Arkansas or New
Haven, Connecticut ALJ positions, or a substantially equivalent position,
retroactive to the date of the selections at issue in this matter;
(2) Within ninety (90) calendar days of the date this decision becomes
final, the agency shall pay complainant back pay, interest, and other
benefits due complainant, pursuant to 29 C.F.R. � 1614.501. 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 ninety (90) 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) Within sixty (60) calendar days of the date of this decision, the
agency shall remit to complainant $30,000.00 in non-pecuniary compensatory
damages;
(4) Within sixty (60) calendar days of the date of this decision, the
agency shall remit to complainant $95,095.80 in attorney's fees and
$6,288.32 in costs;
(5) Within sixty (60) calendar days of the date of this decision, the
agency shall providing the responsible management officials with eight
(8) hours of remedial EEO training regarding Title VII; and
(6) The agency shall consider taking disciplinary action against the
agency officials found to have discriminated against complainant.
The Commission does not consider training to constitute disciplinary
action. The agency shall report its decision. If the agency decides to
take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
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, including
evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Boston, Massachusetts OHA 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____10/23/09______________
Date
1 It is unclear from the record how the agency determined the order in
which the locality vacancies would be considered. The record reflects
that RMO1 and RMO2 were provided with a final list.
2 This case has a long procedural history that included a protracted
discovery period; recusal of the first administrative judge assigned to
the case; destruction of the complaint file and initial hearing record
due to the events of September 11, 2001; reconstruction of the file;
a lengthy hearing process; and several rulings/orders issued by both
of the AJs assigned to the case. The AJ's Final Decision provides a
detailed summary of the procedural history, and the Commission will not
reprint this history here.
3 On appeal, neither the agency nor complainant contest the AJ's findings
with respect to the Billings, Dallas, San Antonio, or Hattiesburg
non-selections, or any of the previous rulings on motions issued during
the hearing process. Therefore, the Commission will not address these
four non-selections or any of the AJs' rulings on motions previously
filed by the parties in the instant decision. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
Chapter 9, � IV.A. (November 9, 1999).
4 RMO2 was also aware that, in 1991, RMO4 had denied complainant's
husband's request to transfer to the Boston office from another city to
work in the same office as his wife.
5 The Regional Chief ALJ and the Regional Management Officer were
unavailable to testify at the hearing due to their retirement from
federal service.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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